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How  to  Prepare  a  Will 


Modern  American  Law  Lecture 


Blackstone  Institute,  Chicago 


HOW  TO  PREPARE  A  WILL 


BY 

GEORGE  FOX  TUCKER,  PH.D.,  LL.  B. 

MEMBER    OF   THE    BOSTON   BAR 


One  of  a  Series  of  Lectures  Especially  Prepared  for  the 
Blackstone   Institute 


BLACKSTONB     INSTITUTE 
CHICAGO 

Copyright,  1921,  By  Blackatone  Institute 


T 


GEORGE  FOX  TUCKER 

Mr.  Tucker  was  born  at  New  Bedford,  Massa- 
chusetts, on  January  19,  1852.  He  received  the 
degree  of  Bachelor  of  Arts  from  Brown  University 
at  Providence,  Rhode  Island,  in  1873,  and  his 
degree  of  Bachelor  of  Laws  at  Boston  University 
in  1875.  Subsequently,  the  degree  of  Doctor  of 
Philosophy  was  conferred  upon  him.  He  practiced 
law  in  New  Bedford  from  1876  to  1882  and  then 
removed  his  law  office  to  Boston,  where  he  is  in 
practice  today. 

From  1890  to  1892,  Mr.  Tucker  was  a  member 
of  the  Legislature  of  the  Commonwealth  of  Massa- 
chusetts. In  1892,  he  was  appointed  the  Official 
Reporter  of  the  Decisions  of  the  Supreme  Court  of 
Massachusetts.  He  served  in  this  position  until  the 
year  1900. 

Mr.  Tucker  is  the  author  of  numerous  treatises 
and  articles  relating  to  the  law.  Among  the  im- 
portant are  "Naturalization,"  in  MODERN  AMERI- 
CAN LAW,  "Testamentary  Forms  and  Notes  on 
Wills,"  and  "Manual  of  Massachusetts  Corpora- 
tions." He  is  joint  author  of  Gould  and  Tucker's 
"Notes  on  United  States  Statutes,"  and  with  Dr. 
Wilson  of  Harvard  on  "International  Law." 


M 


HOW  TO  PREPARE  A  WILL 

By 
GEORGE  Fox  TUCKER,  PH.D.,  LL.B. 

WHY  ONE  SHOULD  MAKE  A  WILL  AND  WHERE  THE 
WILL  MAY  BE  MADE 

Winy  One  Should  Make  a  Will. — It  is  a  frequent 
observation,  "I  am  not  going  to  make  a  will,  because 
I  am  entirely  satisfied  with  the  disposition  which  the 
law  will  make  of  my  property  after  my  decease." 
This  is  a  thoughtless  remark,  for  generally  there  are 
the  best  reasons  for  making  a  will,  even  if  the  testator 
gives  his  property  exactly  as  it  would  descend  if  he 
left  no  will.  For  example,  a  man  may  name  his  exe- 
cutor in  his  will  and  release  him  from  giving  a  surety 
or  sureties  upon  his  official  bond.  He  may  also  em- 
power him  to  sell  property  without  an  order  of  court. 
Thus  the  settlement  of  the  estate  is  made  more  easy 
and  expense  is  avoided. 

A  person  may  have  large  obligations  and  a  good 
deal  of  property  not  readily  marketable.  He  may 
make  a  will  for  the  purpose  of  instructing  his  execu- 
tor how  to  marshall  assets  to  pay  the  debts.  This 
applies  to  business  men  who  are  hiring  a  good  deal 
of  money.  The  instructions  would  vary  according  to 
the  circumstances  of  each  case. 

A  testator  may  desire  to  give  his  executor  instruc- 
tions as  to  carrying  on  his  business  for  a  period  long 
enough  to  liquidate  obligations  and  husband  re- 
sources. 

5 


6  MODERN  AMERICAN  LAW  LECTURE 

The  question  of  the  executor's  compensation  may 
be  important.  If  the  testator's  affairs  are  so  involved 
as  to  require  skill,  time  and  experience  on  the  part 
of  the  executor,  he  may  provide  in  the  will  for  liberal 
compensation,  or,  if  the  estate  is  safely  invested  and 
there  are  few  obligations,  smaller  compensation. 

It  is  perhaps  the  duty  of  the  administrator,  if 
there  is  no  will,  to  insure  the  estate.  In  the  will  the 
testator  may  give  special  instructions  as  to  insur- 
ance. 

The  testator  may  desire  to  make  certain  provisions 
as  to  money  advanced  by  him  to  his  children  as  evi- 
denced by  promissory  notes,  book  charges,  etc.  So 
also  as  to  equalizing  gifts  of  property  made  to  his 
children.  This  is  important  when  there  is  a  large 
family.  A  carefully  drawn  provision  may  be  in- 
serted in  the  will  stating  that  the  amount  advanced  to 
a  child  shall  be  deducted  from  the  share  given  him. 

From  the  above  it  is  obvious  that  there  may  be 
excellent  reasons  for  making  a  will  even  though  the 
testator  gives  his  property  as  it  would  descend  if  he 
left  no  will. 

Where  the  Will  May  Be  Made. — With  some  ex- 
ceptions, a  will  may  be  made  in  any  part  of  the  globe, 
but,  if  made  at  a  place  distant  from  the  testator's 
legal  residence,  he  should  have  witnesses,  if  possible, 
of  that  residence.  Suppose  the  will  is  made  in  Italy 
and  the  witnesses  are  all  Italians.  Bringing  them 
to  this  country  to  prove  the  will  would  involve  great 
expense. 

If  a  testator  changes  his  domicile  he  should  learn 
from  a  lawyer  whether  a  new  will  is  necessary. 


HOW  TO  PREPABB  A  WILL  7 

A  famous  man  declared  his  domicile  as  follows : 

"I,  the  Right  Honorable  Cecil  John  Rhodes  of  Cape  Town 
in  the  Colony  of  the  Cape  of  Good  Hope  hereby  revoke  all  testa- 
mentary dispositions  heretofore  made  by  me  and  declare  this 
to  be  my  last  will  which  I  make  this  first  day  of  July,  1899. 

"I  am  a  natural  born  British  subject  and  I  now  declare  that 
I  have  adopted  and  acquired  and  hereby  adopt  and  acquire  and 
intend  to  retain  Rhodesia  as  my  domicile." 

A  person  about  to  make  a  will  should  understand 
that  it  pertains  to  property  within  the  territory  of 
his  own  jurisdiction,  and  whatever  effect  is  given  to 
it  in  other  jurisdictions  is  a  matter  of  comity  or 
favor. 

It  is  well  to  bear  in  mind  that  the  descent,  aliena- 
tion and  transfer  of  real  estate  are  controlled  by  the 
law  of  the  jurisdiction  where  it  is  situated. 

Where  a  person  has  property,  especially  real 
estate,  in  a  state  or  country  other  than  his  own,  the 
following  suggestions  are  pertinent:  His  attorney 
should  ascertain  whether  the  laws  of  the  foreign 
state  or  country  provide  for  the  allowance  of  a  for- 
eign will.  It  may  be  said  that  they  generally  do. 
Proof  of  such  foreign  wills  is  very  common  in  this 
country.  For  example,  the  will  of  a  citizen  of  New 
Jersey,  who  owns  real  estate  in  Illinois,  is  'duly 
proved  in  New  Jersey.  Then  a  certified  copy  of  the 
will  is  proved  in  Illinois;  otherwise  it  would  not  be 
possible  to  transfer  the  real  property  in  that  state. 

Here  it  should  be  noted  that,  where  real  estate  so 
situated  in  a  jurisdiction  other  than  that  of  the  testa- 
tor is  given  specifically,  the  attorney  should  ascertain 
the  law  of  that  jurisdiction  relative  to  such  a  devise. 


8  MODERN  AMERICAN  LAW  LECTURE 

For  example,  a  Massachusetts  testator  once  devised 
valuable  real  estate  in  New  York  City  in  trust.  After 
the  will  had  been  proved  in  New  York,  the  devise  was 
declared  void  as  it  violated  New  York  law.  The 
Massachusetts  lawyer  who  drew  the  will  should  have 
submitted  it  before  execution  to  a  New  York  lawyer 
so  that  it  might  be  drawn  conformably  to  the  laws 
of  both  states. 

CAPACITY  TO  MAKE  A  WILL  AND  DANGER  OF 
BREAKING  IT 

Every  person  twenty-one  and  of  sound  mind,  and 
in  some  places  a  woman  of  eighteen,  may  make  a  will. 
The  attorney,  however,  should  be  vigilant  as  to  mat- 
ters of  fraud,  undue  influence,  mistake  and  sound- 
ness of  mind.  There  is  a  general  impression  that  a 
person  of  advanced  age  cannot  make  a  will.  The  im- 
pression is  wrong.  The  question  is  one  of  the  testa- 
tor's mental  capacity.  In  an  effort  to  break  a 
woman's  will  a  judge  charged  a  jury  as  follows: 

"Soundness  of  mind,  such  as  will  enable  a  person,  under  the 
statute,  to  make  a  will,  has  relation  to  the  business  to  be  trans- 
acted, namely,  the  disposition  of  her  property  by  will.  Her 
mind  must  have  been  sound  with  reference  to  whatever  is 
involved  in  this  transaction;  that  is  to  say,  she  must  have  been 
able  to  understand,  and  carry  in  her  mind,  in  a  general  way, 
the  nature  and  situation  of  her  property,  and  her  relations  to 
those  persons  who  are  about  her;  to  those  who  would  naturally 
have  some  claim  to  her  remembrance ;  to  those  persons  in  whom, 
and  those  things  in  which,  she  has  been  mostly  interested.  She 
must  have  been  capable  of  understanding  these  things,  and  the 
nature  of  the  act  she  was  doing,  and  the  relation  in  which  she 
stood  to  the  objects  of  her  bounty,  and  to  those  who  ought  to 
be  in  her  mind  on  such  an  occasion,  and  free  from  any  delusion 


HOW  TO  PREPARE  A  WILL  9 

which  was  the  effect  of  disease,  and  which  would  or  might  lead 
her  to  dispose  of  her  property  otherwise  than  she  would  have 
done  if  she  had  known  and  understood  correctly  what  she  was 
doing.  All  the  testimony,  covering  the  whole  later  portion  of 
her  life, — as  to  her  relations  and  degree  of  intimacy  with  her 
brothers  and  sisters  and  nephews  and  nieces ;  as  to  what  she  said 
and  what  she  did;  as  to  her  peculiarities,  if  you  find  that  she 
had  any ;  as  to  her  disposition  and  temperament,  her  griefs  and 
bereavements,  her  attacks  of  sickness,  whatever  you  may  find 
them  to  have  been,  her  habits  and  manners ;  as  to  what  you  may 
find  that  she  was  not  able  to  do,  and  what  she  was  able  to  do, — 
may  be  considered  so  far  as  they  will  aid  you  in  determining 
her  condition  of  mind  on  (date  of  the  will).  Age  is  not  of  itself 
a  disqualification,  but  it  excites  vigilance  to  see  if  it  is  accom- 
panied with  incapacity.  Disease  is  not  itself  a  disqualification, 
but  all  infirmities  awaken  caution  to  see  if  mental  capacity  is 
impaired  or  gone." 

It  is  the  common  belief  that  wills  are  easily  broken. 
This  is  an  error.  Attempts  are  frequently  made,  but 
are  not  often  successful.  The  reasons  for  breaking 
a  will  generally  assigned  are  unsoundness  of  mind, 
referred  to  in  the  judge's  charge  given  above,  and 
undue  influence.  The  test  in  the  case  of  undue  in- 
fluence is  whether  or  not  the  testator  was  an  abso- 
lutely free  agent.  The  influence  may  be  exerted  by 
one  who  benefits  by  the  will  or  by  a  third  person. 
The  important  facts  are  the  condition  of  the  testa- 
tor's mind  as  to  soundness  and  its  susceptibility  to 
improper  counsel  and  persuasion ;  what  is  done  and 
said  in  preparing  the  will  as  bearing  on  motive,  dis- 
position, secrecy,  etc.,  and  the  method  employed  by 
the  influencing  party;  the  will  itself,  that  is,  its 
character  and  provisions,  whether  unreasonable  and 
unjust,  always  bearing  in  mind  the  relations  existing 
between  the  testator  and  his  relatives  and  benefici- 


10  MODERN  AMERICAN  LAW  LECTURE 

aries ;  statements  made  by  the  testator  showing  that 
he  was  unduly  influenced  and  statements  made  by  the 
interested  party  showing  the  part  he  took  in  the 
transaction,  and  lastly  the  existence  of  confidential 
relations  between  the  testator  and  the  person  alleged 
to  have  exerted  the  undue  influence. 

Physicians  should  be  very  careful  as  to  giving  ad- 
vice to  patients  in  the  preparation  of  their  wills,  and, 
indeed,  should  give  no  advice  at  all.  There  is  no 
objection  to  a  person's  saying  to  one  about  to  make 
his  will,  "I  wish  you  would  give  me  a  legacy  in  your 
will."  Beyond  this  it  is  not  safe  to  go. 

There  is  a  method  resorted  to  to  ascertain  what  a 
will  means,  which  is  often  incorrectly  regarded  as 
an  attempt  to  break  a  will.  This  is  what  is  called 
construing  a  will,  not  breaking  it.  For  example,  a 
question  arises  as  to  the  meaning  of  the  will ;  that  is, 
the  language  is  not  clear.  In  the  case  of  a  trust,  for 
example,  births,  deaths  or  the  happening  of  events 
since  the  testator's  death  may  have  interfered  with 
his  intention  so  that  the  trustee  is  doubtful  how  to 
proceed.  In  such  case  the  trustee  files  a  petition 
requesting  the  court  to  instruct  him,  and  the  court 's 
instructions  become  in  reality  a  part  of  the  will. 

HOW  WILLS  DIFFER   FROM   OTHER  DOCUMENTS 

A  testator  may  like  to  know  how  a  will  differs  from 
obligations,  such  as  contracts. 

There  is  no  contractual  relation  in  the  case  of  a 
will.  It  merely  provides  for  gifts,  and  the  legatees 
generally  are  not  aware  of  the  testator's  bounty  until 
the  will  is  opened  after  his  death. 


HOW  TO  PREPARE  A  WILL  11 

Contracts  generally  take  effect  immediately;  but 
a  will  does  not  take  effect  until  the  testator's  death. 
It  is  evident  that  a  man's  property  may  greatly  fluc- 
tuate in  value  between  the  time  of  making  his  will 
and  his  decease. 

Many  contracts,  especially  deeds,  mortgages,  etc., 
are  recorded  and  hence  are  open  to  inspection;  but 
the  will  is  generally  kept  secret  during  the  testator's 
life.  A  disclosure  of  its  contents  is  gratuitous  on  his 
part. 

The  obligations  of  a  contract  must  be  observed 
by  the  parties  thereto,  but  the  testator  may  revoke 
his  will  at  any  time  by  destroying  it. 

Contracts  deal  with  specific  things  and  pertain  in 
most  cases  to  only  a  part  of  a  man's  estate.  Nine- 
teen wills  out  of  twenty  dispose  of  a  man's  entire 
estate. 

The  language  used  in  framing  contracts  is  nearly 
always  exact  and  definite.  A  will  may  be  drawn  in 
the  loosest  way  and  obscure  language  may  be  used. 
Poorly  constructed  wills  have  caused  boundless  dis- 
appointment and  discontent  and  have  entailed  great 
expense. 

In  the  case  of  the  parties  to  most  contracts  there 
is  no  kinship ;  in  the  case  of  a  will  the  domestic  rela- 
tions are  generally  involved,  especially  when  the 
legatees  are  of  the  testator's  own  blood. 

Unfortunately  a  will  often  contains  irrelevant  and 
extraneous  matter  such  as  reference  to  the  testator's 
infirmities  and  eccentricities  and  allusions  in  a  spite- 
ful way  to  certain  individuals  and  even  friends.  This 
is  unwise  and  sure  to  lessen  respect  for  the  testator's 
memory. 


12  MODERN  AMERICAN  LAW  LECTURE 

A  contract  is  generally  carried  out  by  the  parties 
to  it ;  a  will  requires  a  general  agent  called  an  execu- 
tor. It  is  to  be  noted  that  a  written  power  of  attorney 
which  one  gives  while  living  is  an  authorization  to 
the  attorney  to  do  some  particular  thing,  but  the 
power  conferred  upon  an  executor  is  to  dispose  of 
the  entire  estate  given  by  the  will. 

After  a  contract  has  been  fully  carried  out  it  is  of 
no  value,  but  after  a  will  has  been  proved  it  is  of 
great  value,  because  it  becomes  a  matter  of  record, 
and  often  title  to  real  estate  depends  upon  it. 

Rules  of  construction  in  the  case  of  contracts  and 
wills  differ,  being  more  liberal  in  the  case  of  wills. 
It  is  said  as  to  wills,  "  Where  two  clauses  or  gifts  are 
irreconcilable,  so  that  they  cannot  possibly  stand 
together,  the  clause  or  gift  which  is  posterior  in  local 
position  shall  prevail,  the  subsequent  words  being 
considered  to  denote  a  subsequent  intention."  It  is 
said  as  to  contracts,  "  Where  there  are  two  clauses  in 
a  contract,  so  totally  repugnant  to  each  other  that 
they  cannot  stand  together,  the  former  shall  be  re- 
ceived and  the  latter  rejected/7 

DIFFERENT  KINDS  OF  WILLS 

The  advisable  will  is  the  one  in  the  ordinary  form, 
but  a  few  exceptional  wills  may  be  mentioned. 

A  nuncupative  will  is  one  made  by  a  soldier  in 
service  or  by  a  sailor  at  sea.  The  will  is  declared 
orally  by  the  testator,  while  in  anticipation  of  death, 
before  witnesses  and  is  afterwards  reduced  to  writ- 
ing. Such  wills  are  rare.  The  author  has  yet  to  learn 
of  one  so  declared  during  the  great  war. 

A  contingent  will  is  made  to  take  effect  on  a  con- 


HOW  TO  PREPARE  A  WILL  13 

tingency,  and,  if  the  contingency  does  not  happen, 
the  will  is  not  admitted  to  probate.  Such  a  will  is, 
of  course,  not  advisable. 

Sometimes  a  party  for  a  certain  consideration 
agrees  to  make  a  will  in  favor  of  another  party.  Some 
difficulty  may  be  encountered  in  prevailing  upon  a 
court  to  uphold  such  an  agreement.  Such  wills  are 
also  not  to  be  encouraged. 

There  have  been  a  few  cases  of  mutual  wills,  and, 
while  the  law  upon  the  subject  is  meagre,  it  is  said, 
"The  doctrine  of  the  principal  text- writers  seems  to 
be  that,  when  a  fair  and  definite  agreement  has  been 
entered  into  between  two  persons  to  make  mutual 
wills,  and  such  wills  have  been  duly  executed,  neither 
can  revoke  his  will  without  giving  notice  to  the  other 
of  such  revocation.  The  most  famous  instance  of  a 
mutual  will  arose  in  Massachusetts  many  years  ago 
and  was  known  as  the  Howland  Will  Case.  It  was 
claimed  by  the  niece  that  she  and  her  aunt  signed 
a  mutual  will,  and,  on  the  death  of  the  aunt,  this 
will  was  contested.  A  large  estate  was  involved  but 
no  new  law  points  were  decided,  as  the  case  was 
eventually  dropped.  If  A  and  B  desire  to  make 
mutual  wills  the  best  way  to  proceed  is  as  follows: 
Let  A  make  a  will  giving  all  his  property  to  B  and 
let  B  make  a  will  giving  all  his  property  to  A.  If, 
for  example,  A  dies  first,  B  will  take  A's  estate  under 
his  will.  Then  B  should  destroy  his  own  will  as  it 
gives  his  property  to  a  deceased  person  and  is  no 
longer  of  any  effect  or  value. 

In  some  states  holographic  wills  are  permitted.  A 
holographic  will  is  one  entirely  written,  dated  and 
signed  by  the  hand  of  the  deceased. 


14  MODERN  AMERICAN  LAW  LECTURE 

The  most  important  of  all  testaments  next  to  the 
will  itself  is  the  codicil.  It  is  sometimes  called  a  lit- 
tle will.  A  testator  may  make  any  number  of  codicils. 
It  is  authentic  that  a  testator  in  England  once  made 
thirty-three.  Codicils  are  often  dangerous  because 
they  are  likely  to  conflict  with  the  will  and  lead  to 
confusion.  It  is  often  said  that  it  is  better  to  re- 
write the  entire  will  and  not  resort  to  a  codicil.  This 
is  generally  true,  but  an  exceptional  case  is  where 
there  is  apprehension  that  the  testator's  faculties 
have  become  impaired  since  making  the  will  and 
there  is  a  question  whether  he  now  has  full  testament- 
ary capacity.  If  a  codicil  is  executed  and  later  de- 
clared void  on  account  of  unsoundness  of  mind,  the 
will,  made  when  the  testator  was  in  vigorous  condi- 
tion, will  stand. 

A  codicil  should  state  that  it  confirms  "the  will  in 
all  its  provisions  save  as  changed  by  this  codicil." 
Even  then  care  should  be  exercised  to  avoid  ambigui- 
ties. For  example,  if  a  legacy  of  five  thousand  dol- 
lars is  given  to  A  in  the  will  and  another  legacy  of 
three  thousand  dollars  is  given  to  him  in  the  codicil 
and  no  words  are  used  to  show  the  testator's  inten- 
tion, A  will  take  eight  thousand  dollars  in  all.  In 
such  a  case  the  will  should  clearly  state  whether  the 
second  legacy  is  to  be  added  to  the  first,  or  whether 
it  is  to  be  substituted  for  the  first  so  that  the  legatee 
will  take  only  three  thousand  dollars. 

Where  powers  of  sale  are  given  to  executors  or 
trustees  in  the  will  and  one  dies  and  a  successor  is 
named  in  the  codicil  without  conferring  upon  him  the 
powers  of  sale  given  the  two  named  in  the  will,  it 
is  clear  that  both  executors  or  trustees  cannot  act 


HOW  TO  PREPARE  A  WILL  15 

under  the  powers  given  in  the  will.  In  a  few  well 
chosen  words  the  executor  or  trustee  named  in  the 
codicil  may  be  invested  with  the  same  powers  con- 
ferred on  the  executor  or  trustee  named  in  the  will. 

As  the  will  and  codicil  are  in  a  certain  sense  one, 
the  codicil  should  be  securely  annexed  to  the  will. 
Suppose  it  is  not  so  annexed  and  the  will  cannot  be 
found  and  there  is  no  certified  copy  thereof,  the 
proof  of  the  codicil  will  leave  matters  in  a  very 
unsatisfactory  condition. 

WHO  MAY  BE  A  DEVISEE  OR  LEGATEE 

The  word  " devise"  usually  applies  to  real  and 
"legacy"  or  "bequest"  to  personal  estate,  but  the 
words  are  used  interchangeably. 

It  is  a  general  rule  that  nearly  any  one  may  take 
under  a  will.  If  a  person  is  an  infant  or  insane  or 
otherwise  incompetent  a  guardian  will,  of  course, 
be  appointed. 

Nearly  everywhere  now  a  married  woman  is  put 
upon  the  same  footing  as  if  she  were  single.  Never- 
theless forms  like  the  following  are  still  common  both 
in  the  case  of  married  and  unmarried  women : 

I  give  to  my  daughter  A  jive  thousand  dollars  to 
be  paid  to  her  upon  her  separate  receipt. 

The  legacies  given  in  this  will  to  my  daughters, 
whether  married  or  unmarried,  shall  be  for  their 
separate  usef  independently  of  any  other  person  or 
persons. 

Aliens  may  take  personal  property  by  bequest  and 
in  many  states  real  property  by  devise.  Indeed 
many  treaties  of  this  country  with  foreign  countries 


16  MODERN  AMERICAN  LAW  LECTURE 

provide  that  the  citizens  and  subject  of  either  may 
dispose  of  both  personal  and  real  estate  within  the 
jurisdiction  of  the  other.  The  following  from  the 
treaty  with  France  is  a  good  illustration: 

"In  all  the  States  of  the  Union  whose  existing 
laws  permit  it,  so  long  and  to  the  same  extent  as 
the  said  laws  shall  remain  in  force,  Frenchmen  shall 
enjoy  the  right  of  possessing  personal  and  real  prop- 
erty by  the  same  title  and  in  the  same  manner  as  the 
citizens  of  the  United  States.  They  shall  be  free  to 
dispose  of  it  as  they  may  please,  either  gratuitously 
or  for  value  received,  by  donation,  testament  or 
otherwise,  just  as  those  citizens  themselves;  and  in 
no  case  shall  they  be  subjected  to  taxes  on  transfer, 
inheritance,  or  any  others  different  from  those  paid 
by  the  latter,  or  to  taxes  which  shall  not  be  equally 
imposed. 

"As  to  the  States  of  the  Union  by  whose  existing 
laws  aliens  are  not  permitted  to  hold  real  estate,  the 
President  engages  to  recommend  to  them  the  pass- 
age of  such  laws  as  may  be  necessary  for  the  purpose 
of  conferring  this  right. 

"In  like  manner,  but  with  the  reservation  of  the 
ulterior  right  of  establishing  reciprocity  in  regard  to 
possession  and  inheritance,  the  Government  of 
France  accords  to  the  citizens  of  the  United  States 
the  same  rights  within  its  territory  in  respect  to 
real  and  personal  property  and  to  inheritance,  as  are 
enjoyed  there  by  its  own  citizens." 

In  nearly  all  jurisdictions  corporations  may  take 
under  wills;  in  a  few  they  are  disqualified  unless 
specially  authorized  to  take.  The  amount  of  prop- 
erty they  may  hold  is  in  some  states  fixed  by  statute. 


HOW  TO  PREPARE  A  WILL  17 

Municipal  corporations  are  generally  authorized 
to  take  legacies  and  devises,  and  the  same  is  said  of 
the  United  States. 

WHAT  MAY  OR  MAY  NOT  BE  BEQUEATHED  OR 
DEVISED 

In  a  general  sense  a  testator  may  dispose  of  all 
his  property.  The  following  considerations  are 
worthy  of  notice. 

After-Acquired  Property. — Everywhere  now  a 
residuary  clause  in  a  will  conveys  not  only  the  real 
and  personal  property  the  testator  owned  when  the 
will  was  made,  but  any  afterwards  acquired  by  him. 

Contingent  Interests. — These  may  be  bequeathed. 
For  example,  property  is  given  to  A  for  life  and  at 
his  death  to  B  absolutely.  B  may  bequeath  his  in- 
terest, although  A  is  living  at  the  time  of  B 's  death, 
but  the  person  to  whom  B  bequeaths  the  property 
cannot  have  it  in  possession  until  A  dies. 

Property  Which  the  Testator  Does  Not  Own. — If 
the  testator  has  property  belonging  to  others  and 
it  is  not  distinguishable  from  his  own,  the  owner 
may  have  to  come  in  as  a  general  creditor.  It  may 
be  advisable  to  insert  in  the  will  a  disclaimer  of  title 
as  in  the  following  form: 

"I  have  in  my  possession  the  following  securities 
belonging  to  my  wife  (full  description).  It  is  prob- 
able that  with  my  wife's  consent  I  may  dispose  of 
some  of  the  above  securities  and  reinvest  the  pro- 
ceeds. I  therefore  direct  my  executor  to  transfer 
to  my  said  wife  as  her  separate  estate  all  the  above 
named  securities  or  those  subsequently  purchased." 

.  Deposits  in  Savings  Banks. — A  loose  practice  pre- 


18  MODERN  AMERICAN  LAW  LECTURE 

vails  in  some  places  of  permitting  a  person  to  deposit 
money  in  a  savings  bank  in  his  own  name,  as  trustee 
for  another,  in  order  to  evade  the  law  limiting  the 
amount  of  deposit  from  any  one  person.  There  has 
been  much  litigation  on  this  subject.  The  attorney 
should  ascertain  from  the  testator  whether  he  lias 
entered  into  any  such  trusts. 

Good-will  of  a  Business. — This  may  be  bequeathed. 

Power  of  Appointment. — If  a  will  which  creates 
a  trust  for  A  provides  that  the  principal,  after  the 
death  of  A,  shall  go  to  B  or  to  any  person  whom  B 
may  name  and  appoint  by  an  instrument  in  writing, 
this  power  so  to  appoint  may  be  executed  in  B 's  will. 

Policies  of  Life  Insurance. — If  policies  on  the  life 
of  the  testator  are  made  payable  to  him,  he  may,  of 
course,  bequeath  the  proceeds. 

Heirlooms. — If  a  testator  desires  that  some  article 
of  personal  or  domestic  value  shall  remain  in  the 
family  for  a  considerable  period,  the  best  method 
is  to  attach  to  the  bequest  an  instruction  or  request 
as  in  the  following  form: 

"I  give  my  son  A  my  gold  watch,  which  was  be- 
queathed to  me  by  my  father.  I  desire  my  said  son 
to  dispose  of  the  same  in  such  manner,  if  possible, 
that  it  may  be  held  in  the  family  during  the  succeed- 
ing generation,  but  I  impose  no  restrictions." 

Survival  of  Actions. — Much  litigation  has  been 
occasioned  by  contracts  failing  to  make  clear  whether 
a  right  of  action  does  or  does  not  survive.  An  at- 
torney should  ask  a  business  man  as  to  his  outstand- 
ing obligations,  for,  if  it  appears  that  a  right  of 
action  does  or  does  not  survive,  he  may  desire  to 
modify  his  existing  contracts. 


HOW  TO  PREPARE  A  WILL  19 

Testator's  Body,  Monuments  and  Burial  Lot. — A 
testator  may  give  instructions  in  his  will  as  to  crema- 
tion, but,  if  he  desires  to  give  directions  as  to  the  dis- 
position of  his  body  by  burial,  he  should  put  them  in 
a  paper  to  be  opened  immediately  after  death  and 
not  in  the  will,  as  the  will  is  generally  read  after  the 
burial. 

While  in  most  states  statutes  provide  that  a  rea- 
sonable amount  expended  for  a  monument  may  be 
allowed,  testators  often  prefer  to  cover  the  matter  in 
their  wills.  The  testator  should  state  in  his  will  the 
date  of  his  birth ;  otherwise  the  executor  may  be  put 
to  trouble  in  ascertaining  the  date. 

Form. — I  direct  my  executor  to  erect  over  my  re- 
mains in  my  lot  No.  19  in  the  Rural  Cemetery  in,  etc., 
a  suitable  stone  inscribed  with  my  name  and  the  dates 
of  my  birth  and  death.  I  was  born  on  the  ninth  day 
of  August,  1847.  I  authorize  him  to  expend  for  the 
above  purpose  a  sum  not  exceeding  three  hundred 
dollars. 

Where  statutes  so  authorize  money  may  be  de- 
posited with  municipal  authorities  for  the  perpetual 
care  of  a  burial  lot. 

Form. — I  direct  my  executor  to  place  a  suitable 
tombstone  at  my  grave  in  the  A  Cemetery  of,  etc.,  not 
to  exceed  two  hundred  dollars  in  value,  and  to  pay 
the  proper  board  of  municipal  authorities  an  equal 
sum,  the  net  income  of  which  shall  be  expended  for 
the  perpetual  care  and  preservation  of  my  burial 
lot  in  said  cemetery. 

Residence  of  the  Testator  as  a  Home  for  the  Fam- 
ily.— Often  testators  provide  that  the  home  shall  be 
maintained  for  the  benefit  of  the  entire  family.  Gen- 


20  MODERN  AMERICAN  LAW  LECTURE 

erally  such  provisions  for  an  open  home  should  be 
merely  the  expression  of  wishes  or  requests. 

Form. — It  is  my  special  wish  that  my  said  wife 
shall  keep  open  the  homestead  devised  to  her  above 
for  the  enjoyment  and  accommodation  of  all  of  our 
children  and  grandchildren,  who  may  desire  from 
time  to  time  to  visit  her. 

Personal  Estate  Subject  to  Incumbrance. — In  the 
absence  of  any  expressed  intention  in  the  will  to  the 
contrary,  personal  property  specifically  bequeathed 
is  to  be  exonerated  from  all  incumbrances  placed 
upon  it  by  the  testator.  For  example,  stock  pledged 
for  a  debt.  The  attorney  should  bring  this  matter 
to  the  notice  of  the  testator. 

Carrying  on  Testator's  Business. — If  it  is  deemed 
best  to  give  executors  power  to  carry  on  the  testator's 
business,  the  authority  should  be  limited  to  as  brief  a 
period  as  is  consistent  with  settling  the  estate. 

Form. — I  authorize  and  empower  my  executors 
to  continue  the  business  in  which  I  am  engaged  at 
the  time  of  my  decease  for  a  period  long  enough  to 
liquidate  the  same;  and  to  this  end  I  confer  upon 
them  all  power  in  the  premises,  including  that  of 
giving  and  renewing  promissory  notes. 

Pews. — Where  pews  are  made  personal  property 
by  statute  they  may  be  bequeathed. 

Dumb  Animals. — Humane  testators  often  make 
provision  as  to  the  care,  custody,  etc.,  of  dumb 
animals. 

Form. — I  give  to  the  Society  for  the  Prevention 
of  Cruelty  to  Animals  of,  etc.,  all  the  living  dumb 
animals  I  may  possess  at  the  date  of  my  decease  to  be 


HOW  TO  PREPARE  A  WILL  21 

disposed  of  in  the  most  humane  manner  by  sale  or 
gift  or  by  depriving  them  of  life. 

Various  Bequests  and  Provisions. — Sometimes  a 
testator  inserts  in  his  will  a  provision  to  the  effect 
that  a  certain  conveyance  of  real  estate  made  by  him 
during  his  life  is  confirmed,  as,  "I  hereby  ratify 
and  confirm  a  certain  conveyance  to  A  B  made  by 
me  by  deed  dated,  etc.,  and  recorded,  etc." 

Sometimes  it  is  provided  that  if  one  provision  in 
the  will  is  declared  void,  other  provisions  shall  not 
be  affected  thereby,  although  perhaps  such  precau- 
tion is  unnecessary. 

Form. — If  any  provision  in  this  will  for  any  lega- 
tee shall  prove  to  be  invalid,  I  expressly  declare  that 
such  invalidity  shall  in  no  wise  affect  or  impair  any 
other  provision  or  provisions  of  this  will  or  of  any 
codicil  hereto. 

It  is  advisable  that  all  bequests  should  be  definite 
and  certain.  Sometimes  a  testator  gives  a  person 
a  legacy,  which,  added  to  the  property  that  person 
already  possesses,  will  make  a  certain  amount.  Such 
a  provision  is  too  indefinite,  yet  it  sometimes  appears 
as  in  the  following  form: 

"I  give  A  a  sum  of  money,  which,  when  added  to 
the  property  she  already  possesses,  will  amount  to 
five  thousand  dollars. " 

Often  a  will  contains  a  direction  as  to  purchasing 
some  token  of  remembrance  for  a  friend  of  the  testa- 
tor. 

Form. — I  give  my  friend  A  one  hundred  dollars 
as  a  token  of  kindly  remembrance,  and  I  trust  that 
she  will  purchase  with  the  same  some  memorial  which 
will  serve  as  a  reminder  of  my  esteem. 


22  MODERN  AMERICAN  LAW  LECTURE 

Often  an  ante-nuptial  agreement ;  that  is,  a  written 
agreement  entered  into  by  a  man  and  woman  before 
marriage,  provides  for  the  giving  up  by  the  wife  of 
all  interest  in  both  the  real  and  personal  estate  of 
the  husband  in  consideration  of  a  certain  sum  to 
be  paid  to  her  after  his  death.  In  the  husband's  will 
should  appear  a  provision  like  the  following : 

"I  direct  my  executors  to  pay  to  my  wife  A  the 
sum  of  twenty  thousand  dollars  in  performance  of 
the  ante-nuptial  contract  made  between  us  on  the 
10th  day  of,  etc.,  in  lieu  of  dower  and  all  other  rights 
whatever  she  may  have  in  and  to  my  real  and  per- 
sonal estate." 

If  a  will  duly  executed  incorporates  in  itself,  by 
reference,  any  outside  document  or  paper,  such  out- 
side document  or  paper  so  referred  to,  if  in  existence 
at  the  time  of  the  execution  of  the  will  and  clearly 
identified  as  the  document  or  paper  referred  to 
therein,  takes  effect  as  part  of  the  will. 

This  is  a  dangerous  provision. 

FORM  OF  THE  WILL 

All  that  is  necessary  in  a  will  is  that  it  discloses  the 
intention  of  the  testator  as  to  this  disposition  of 
his  property.  The  will  may  be  irregular  in  form  and 
the  language  obscure  and  inartificial,  and  the  instru- 
ment may  be  written  on  waste  paper  and  with  a  pen- 
cil, but  if  properly  executed  and  witnessed  it  may  be 
proved  as  will.  It  is  for  this  reason  that  great  care 
should  be  taken  in  the  preparation  of  the  document 
and  an  attorney  should  be  employed  to  draft  it.  The 
probate  of  a  will  merely  establishes  its  execution. 
The  meaning  of  the  will  is  another  question. 


HOW  TO  PREPARE  A  WILL  23 

If  the  will  is  in  hand  writing  care  should  be  given 
to  chirography,  for  if  it  is  necessary  to  decipher  it 
there  may  be  a  difference  of  opinion  as  to  the  mean- 
ing of  words  and  phrases.  Most  wills  are  now  type- 
written, but  the  very  convenience  of  this  method 
opens  the  way  to  fraud  and  forgery.  To  take  away 
the  inducement  of  any  interested  person,  who  may 
get  hold  of  the  will,  to  subtract  a  page  or  two  and 
insert  a  substitute  or  substitutes  the  testator  should 
sign  every  page  of  his  will. 

Care,  too,  should  be  taken  in  the  matter  of  punctua- 
tion :  In  recent  years  in  Massachusetts  the  punctua- 
tion of  a  sentence  of  a  statute  upset  for  a  while  the 
business  of  a  great  industry.  A  New  York  judge  has 
said,  "  Punctuation  may  perhaps  be  resorted  to  when 
no  other  means  can  be  found  of  solving  an  ambiguity  ; 
but  not  in  cases  where  no  real  ambiguity  exists,  ex- 
cept what  punctuation  itself  creates." 

There  is  no  regular  form  for  the  commencement 
of  a  will.  It  should,  however,  be  brief. 

The  following  are  common  forms : 

Know  all  men  by  These  Presents,  That  I,  A.  B., 
of,  etc.,  being  of  sound  and  disposing  mind  and  mem- 
ory, do  make  this  my  last  will  and  testament,  revok- 
ing all  wills  and  codicils  by  me  at  any  time  heretofore 
made. 

Know  All  Men  by  These  Presents,  that  I,  A.  B., 
of,  etc.,  do  make  this  my  last  will  and  testament. 

This  is  the  last  will  and  testament  of  me,  A.  B., 
of,  etc. 

I,  A.  B.,  of,  etc.,  do  make,  publish  and  declare  the 
following  as  and  for  my  last  will  and  testament. 

Be  it  remembered  that  I,  A.  B.,  of,  etc.,  do  make 


24  MODERN  AMERICAN  LAW  LECTURE 

this  my  last  will  and  testament,  intending  hereby  to 
dispose  of  all  the  property  over  which  I  shall  at  my 
decease  have  a  right  of  disposition,  by  appointment, 
will,  or  otherwise. 

I,  A.  B.,  of  etc.,  hereby  revoke  all  testamentary 
dispositions  heretofore  made  by  me  and  declare  this 
to  be  my  last  will  which  I  make  this  tenth  day  of, 
etc. 

In  the  name  of  God,  Amen :  I,  A.  B.,  of,  etc.,  be- 
ing of  sound  and  disposing  mind  and  memory,  and 
mindful  of  the  uncertainty  of  life,  do  make,  publish 
and  declare  this  to  be  my  last  will  and  testament,  in 
manner  following,  that  is  to  say : 
THE  EIGHTS  OF  HUSBAND,  WIFE  AND  CHILDREN 

While  a  single  man  or  woman  is  unfettered  in  dis- 
posing of  his  or  her  property,  a  married  man  is  in 
nearly  every  jurisdiction  subject  to  restraints  as  to 
children  and  the  issue  of  a  deceased  child,  and  as  to 
his  wife. 

In  most  states  if  the  testator  does  not  provide  for 
his  children,  or  for  the  issue  of  a  deceased  child,  in 
his  will  they  will  share  in  his  estate  as  they  would 
have  shared  if  he  had  left  no  will,  unless  provision 
was  made  for  them  by  him  during  his  lifetime,  or 
unless  his  failure  to  provide  for  them  in  the  will  was 
intentional  and  not  occasioned  by  accident  or  mis- 
take. The  will  should  clearly  express  his  intention. 
In  England  the  disinheritance  of  a  child  or  the  issue 
of  a  deceased  child  is  indicated  by  giving  a  shilling. 
In  this  country  the  method  is  to  give  a  nominal  sum 
or  to  use  language  showing  that  the  testator  has  not 
forgotten  his  children  or  the  issue  of  deceased  chil- 
dren. 


HOW  TO  PREPAEE  A  WILL  25 

Forms  like  the  following  are  frequently  used : 

I  give  to  my  only  child  A  and  to  my  only  grand- 
child B,  who  is  the  son  of  my  deceased  daughter  C, 
the  sum  of  one  dollar  each. 

I  give  to  my  only  living  children,  A,  B  and  C, 
the  sum  of  five  dollars  each,  and  make  no  further  pro- 
vision for  them  as  I  am  sure  that  their  mother  will 
provide  for  their  education  and  support. 

I  purposely  give  no  legacies  in  this  will  to  my 
only  children,  A,  B,  C  and  D,  and  mention  them  here- 
in to  show  that  I  have  not  forgotten  them. 

I  intentionally  exclude  from  any  interest  in  my 
estate  my  daughters  A  and  B  and  my  son  C  and  also 
any  other  child  or  children  that  may  be  born  to  me 
before  or  after  my  decease. 

A  testator  often  inserts  a  statement  assigning  rea- 
sons for  a  distinction  in  the  treatment  of  children  or 
grandchildren. 

Having  given  my  son  A  property  equal  to  the 
amount  he  would  take,  if  I  left  no  will,  I  make  no 
provision  for  him  herein. 

The  gift  to  my  daughter  A  of  double  the  amount 
given  to  my  son  B  is  due  to  the  fact  that  I  have  ex- 
pended a  great  deal  of  money  in  my  son's  behalf,  but 
have  done  nothing  for  my  daughter  beyond  provid- 
ing for  her  education  and  support. 

Now  as  to  wife. 

Failure  properly  to  provide  for  the  wife  has  occa- 
sioned boundless  trouble  and  expense.  In  several 
states,  like  Arizona,  California,  Louisiana,  New  Mex- 
ico, Texas  and  Washington  the  law  provides  for  com- 
munity property;  that  is,  property  owned  by  the 


26  MODERN  AMERICAN  LAW  LECTURE 

husband  and  wife.  The  following  provisions  are 
taken  from  California  wills : 

"All  the  property,  real,  personal  and  mixed,  of 
which  I  may  die  possessed,  is  the  common  property 
of  my  wife  and  myself,  the  same  having  been  ac- 
quired since  our  marriage,  and  upon  my  death,  she 
surviving,  she  is  entitled,  in  addition  to  the  devises 
herein  contained,  to  the  undivided  one-half  of  all 
thereof. " 

"I  hereby  declare  that  all  of  my  property  and 
estate  has  been  acquired  since  my  marriage  with  my 
beloved  wife,  A  B,  and  is  community  property  of 
myself  and  my  said  wife." 

Nearly  everywhere  it  is  dangerous  to  give  either 
husband  or  wife  less  than  he  or  she  would  be  entitled 
to,  if  there  were  no  will.  If  husband  or  wife  is  given 
the  right  of  waiving  the  other's  will,  such  waiver  may 
work  confusion  among  the  other  provisions  of  the 
will.  The  rights  of  a  wife  in  the  property  of  her 
husband  are  variously  termed  dower,  distributive  in- 
terest, thirds,  allowances,  rights  of  succession,  and 
widow's  award.  The  rights  of  a  husband  in  the  prop- 
erty of  the  wife  are  called  curtesy,  distributive  in- 
terest, etc. 

Much  litigation  has  been  caused  by  a  husband  not 
making  sufficient  provision  for  the  wife.  When  am- 
ple provision  is  made  for  the  wife  forms  like  the  fol- 
lowing may  be  used. 

The  provision  in  this  will  for  my  wife  is  in  lieu 
of  her  statutory  or  other  claims  to  my  estate. 

The  bequests  and  devises  herein  to  my  wife  are 
in  lieu  of  dower,  widow's  award  and  all  other  pro- 
visions for  her  under  the  laws  of  this  or  any  other 


HOW  TO  PREPARE  A  WILL  27 

state  where  any  of  my  property  real  or  personal  may 
be  situated. 

The  provision  for  my  wife  in  this  will  is  in  lieu 
of  dower  and  widow's  rights. 

The  provisions  for  my  wife  in  this  will  are  in 
lieu  of  her  dower  and  in  bar  of  her  distributive  share 
of  my  estate,  her  year's  allowance  and  all  other  rights 
given  her  by  statute  or  otherwise  in  my  real  and  per- 
sonal estate. 

As  to  a  married  woman  disposing  of  her  property 
by  will.  The  disabilities  imposed  by  the  law  of  cover- 
ture upon  married  women  have  been  largely  removed, 
and  in  many  states  the  married  woman  is  as  free 
as  her  husband  to  dispose  of  her  property  by  will. 
It  is  well,  however,  carefully  to  examine  the  statutes 
and  decisions  of  the  jurisdiction,  as  the  old  rule  that 
she  may  dispose  of  property  settled  upon  her  sole 
and  separate  use,  but  not  her  general  estate,  may  in 
a  few  cases  obtain.  There  are  also  statutes  in  many 
places  which  forbid  the  cutting  off  of  the  husband 
without  his  consent.  Attention  is  called  to  the  re- 
marks just  preceding  as  to  the  rights  of  a  married 
man  to  make  a  will,  as  most  of  the  obligations  are 
likewise  imposed  upon  a  married  woman. 

DESCRIPTION  OP  REAL  ESTATE— CONDITIONS 

If  the  will  contains  a  residuary  clause  all  the  real 
and  personal  estate  not  previously  given  away  in  the 
will  passes  under  it.  When  the  devises  and  bequests, 
however,  are  specific  the  description  should  be  clear 
and  accurate.  Thus  in  devising  real  estate  it  is  ad- 
visable to  show  to  the  attorney  deeds  and  mortgages, 
if  any.  Sometimes  land  is  given,  charged  with  the 


28  MODERN  AMERICAN  LAW  LECTURE 

Devises  are  frequently  made  to  two  or  more  as  joint 
payment  of  money,  to  a  third  person.  This  is  not  ad- 
visable, as  the  charge  on  the  land  may  cloud  the  title, 
tenants  or  tenants  in  common.  Such  devises  are  not 
to  be  encouraged  as  the  holding  of  land  by  two  or 
more  jointly  often  causes  trouble.  Besides  it  may 
be  difficult  for  one  of  the  owners  who  desires  to  sell 
to  find  a  purchaser,  as  people  do  not  care  to  purchase 
land  which  they  are  to  hold  with  others. 

Real  estate  is  frequently  given  to  A  for  life  and  at 
his  death  to  B  to  be  his  absolutely.  Such  a  devise 
may  be  enlarged  by  making  the  remainder  contin- 
gent, as,  "I  give  my  house  and  lot  of  land,  located, 
etc.,  to  A,  for  his  life,  and  at  his  decease  to  the  chil- 
dren of  A,  then  living,  to  be  theirs  absolutely."  It 
is  plain  that  those  who  are  to  take  the  remainder 
cannot  be  determined  until  A  dies. 

There  is  what  is  called  an  executory  devise ;  that  is, 
where  an  estate  is  given  to  A,  but  upon  some  future 
event  the  estate  is  determined  and  then  goes  to  B. 
Where  real  estate  is  given  other  than  directly  to  the 
devisee  the  way  is  often  open  to  litigation. 

Real  estate  is  often  devised  upon  condition.  Fre- 
quently such  a  devise  clouds  the  title.  Conditions 
are  more  common  in  the  case  of  bequests  of  per- 
sonalty. The  following  forms  relate  to  both  real  and 
personal  property : 

Payment  of  Legacies. — If  the  time  of  payment  of 
a  legacy  is  postponed  it  should  appear  whether  the 
legacy  is  to  vest  upon  the  testator's  decease  or 
whether  time  is  to  be  annexed  to  the  gift.  If  the 
legacy  is  to  be  paid  to  the  legatee  when,  for  example, 
he  is  twenty-five  and  he  dies  before  reaching  that 


HOW  TO  PEEPAKE  A  WILL  29 

age  and  the  language  is  such  that  the  legacy  vests 
in  the  legatee,  the  fund  goes  to  his  estate ;  otherwise 
to  the  testator's  estate. 

Forms. — I  give  to  my  son  A  the  sum  of  ten  thou- 
sand dollars,  to  be  paid  to  him  when  he  is  twenty- 
five  years  of  age,  the  legacy  to  vest  in  A  at  the  time  of 
my  decease. 

I  give  to  A  a  legacy  of  five  thousand  dollars  to  be 
paid  to  him  at  the  age  of  twenty-one.  If  he  dies 
before  that  time  the  legacy  shall  fall  into  my  residu- 
ary estate. 

If  the  period  of  payment  of  a  legacy  is  thus  defer- 
red a  provision  may  be  inserted  as  to  the  investment 
of  the  sum  and  the  addition  of  income  to  the  prin- 
cipal. 

Often  a  condition  as  to  approval  is  imposed  as 
follows : 

I  give  A  a  legacy  of  one  thousand  dollars  to  be 
paid  to  him  with  interest  when  he  is  twenty-one, 
provided  he  is  worthy  in  the  judgment  of  my  execu- 
tor to  receive  the  same.  Otherwise  I  give  the  legacy 
with  interest  to  B. 

Legacy  to  Executor  or  Trustee. — It  is  held  that  if 
a  legacy  is  given  to  an  executor  or  trustee  he  may 
not  be  entitled  to  it  unless  he  qualifies.  The  intention 
should  be  expressed. 

I  give  my  executor  A  a  legacy  of  five  thousand 
dollars,  to  be  paid  to  him  whether  he  qualifies  or 
does  not  qualify  as  executor  of  this  will  in  the  pro- 
bate court.  This  legacy  is  in  addition  to  the  com- 
pensation he  is  entitled  to  for  his  services  as  execu- 
tor. 
.  Restraint  of  Marriage. — A  legacy  or  devise  given 


30  MODERN  AMERICAN  LAW  LECTURE 

on  condition  that  the  legatee  does  not  marry  is  void ; 
but  if  the  gift  is  to  A  so  long  as  she1  does  not  marry 
but,  if  she  does  marry,  then  to  B,  it  is  good. 

I  give  and  devise  my  farm,  situated,  etc.,  in  the 
town  of,  etc.,  to  my  wife  A,  so  long  as  she  remains 
my  widow.  In  the  event  of  her  marriage  I  give  and 
devise  said  farm  to  B. 

A  common  way  is  to  create  a  trust  and  make  pro- 
vision like  the  following : 

"If  my  daughter  A  shall  marry  without  the  writ- 
ten consent  of  B,  her  trustee  or  his  successor  in  trust, 
then  the  trust  shall  terminate  and  the  entire  estate, 
discharged  of  all  trust,  shall  go  to  C." 

Restraint  of  Alienation. — A  condition  that  the  de- 
visee shall  not  alienate  is  void.  Land  cannot  be  thus 
encumbered. 

Conditions  Not  to  Dispute  Wills. — It  is  very  com- 
mon now  to  write  in  a  will  a  condition  not  to  dis- 
pute it.  Of  course  this  is  a  domestic  consideration, 
as  only  those  who  would  profit  by  inheritance,  if 
there  is  no  will,  can  dispute  it. 

Forms. — If  any  legatee  under  this  will  contests  the 
probate  thereof  or,  after  it  has  been  probated,  inter- 
feres by  any  court  proceeding  with  the  settlement  of 
my  estate,  then  I  declare  void  the  legacy  to  such  lega- 
tee, and  the  same  shall  fall  into  the  residuum  of  my 
estate. 

I  declare  that  if  either  of  my  two  sons  shall  dis- 
pute the  probate  of  this  will  in  any  court  or  by  any 
proceeding  or  call  in  question  before  any  tribunal 
the  validity  of  any  legacies  given  and  provisions 
made  herein,  then  I  revoke  and  declare  void  the 


HOW  TO  PREPARE  A  WILL  31 

legacy  or  legacies  given  to  said  son,  and  the  same 
shall  fall  into  the  residuum  of  my  estate. 

I  further  declare  that,  if  any  attempt  is  made  to 
contest  this  will  before  any  tribunal  and  proves  un- 
successful, my  executors  shall  pay  all  the  expenses  in- 
curred thereby,  including  reasonable  compensation 
to  themselves  in  addition  to  that  to  which  they  are 
otherwise  entitled  as  executors. 

Gifts  to  Servants,  Employees,  Etc. — A  legacy  is 
often  given  on  condition  that  the  legatee  is  in  the 
testator's  employ  at  the  time  of  his  decease,  or  di- 
rectly without  any  condition.  The  following  are  com- 
mon forms : 

I  give  and  bequeath  to  each  house  and  out-door 
servant,  who  may  be  in  my  employ  at  the  time  of  my 
decease,  the  sum  of  five  hundred  dollars. 

I  give  A  as  a  recognition  of  faithful  devotion  to 
my  interests  a  legacy  of  one  thousand  dollars. 

I  give  and  bequeath  to  each  person  in  my  em- 
ploy at  the  time  of  my  decease  a  sum  equal  to  his 
or  her  salary  for  the  year  preceding  that  event. 

I  give  my  bookkeeper  A  a  legacy  of  five  thousand 
dollars.  If  he  die  before  me,  I  give  the  same  to  his 
wife  B. 

If  A  is  in  my  employ  at  the  time  of  my  decease, 
I  give  him  the  sum  of  five  thousand  dollars.  If  he 
die  before  me  while  in  my  employ  and  leave  issue  liv- 
ing at  the  time  of  my  decease,  then  I  give  the  said 
five  thousand  dollars  to  such  issue  to  be  equally 
divided  among  them. 

DESCRIPTION  OF  LEGATEES  AND  LEGACIES 
Legatees. — The  attorney  should  take  care  that  the 


32  MODERN  AMERICAN  LAW  LECTURE 

name  of  the  legatee  is  absolutely  correct  in  all  cases, 
whether  individual,  association,  society  or  corpora- 
tion. 

The  description  of  legatees  not  by  name  but  as 
" children, "  "heirs,"  etc.,  is  often  a  source  of  embar- 
rassment. For  example,  A  gives  a  legacy  to  B,  "pro- 
vided I  leave  no  heirs,"  meaning  children  or  issue. 
At  his  death  he  leaves  no  children  but  has  plenty  of 
heirs.  Hence  B  takes  nothing.  The  decisions  upon 
cases  involving  the  ambiguous  use  of  these  words  will 
fill  volumes. 

If  a  gift  is  to  youngest  or  oldest  sons  with  nothing 
more  the  question  may  arise  whether  is  meant  the 
youngest  or  oldest  son  living  at  the  time  of  the  mak- 
ing the  will,  or  at  the  testator's  death,  or  at  some 
future  time. 

Other  words  which  have  been  used  unskillfully  are 
"issue,"  "cousins,"  "next  of  kin,"  "descendants," 
"family,"  "legal  representatives,"  and  "survivor." 
If  the  words  "wife"  or  "husband"  are  used  with 
nothing  more  they  may  apply  to  a  second  wife  or  hus- 
band, when  the  first  wife  or  husband  is  intended. 

Description  of  Legacies. — Wearing  apparel, 
watches,  jewelry,  etc.,  should  be  given  directly.  In- 
stead of  imposing  conditions  a  request  may  be  at- 
tached as  in  the  following  form: 

"I  give  to  my  wife  A  all  my  wearing  apparel, 
watches,  jewelry  and  other  personal  effects.  I  trust 
that  she  will  reserve  the  articles  she  desires  as  keep- 
sakes and  distribute  the  rest  among  our  children  as 
she  may  deem  best. " 

Household  furniture  should  be  explicitly  de- 
scribed, and,  if  it  is  intended  to  include  personal 


HOW  TO  PREPARE  A  WILL  33 

property  in  the  stable  or  on  the  grounds,  they  should 
be  mentioned. 

Form. — I  give  and  bequeath  to  my  wife,  A,  all  the 
furniture  in  my  house,  No.  100  Grove  Street,  at  the 
time  of  my  death,  including  my  library,  pictures, 
statuary,  paintings,  bric-a-brac,  plate,  chairs,  car- 
pets, china,  silver,  crockery,  cooking  utensils,  beds, 
bedding,  bookcases,  linen,  consumable  stores  and  all 
other  portable  articles,  whether  useful  or  orna- 
mental ;  and  all  my  horses,  harnesses,  carriages  and 
their  appurtenances,  automobiles,  farming  stock, 
supplies,  tools,  implements,  hay  and  grain  and  all 
other  articles  that  may  be  in  or  about  the  stable  or  on 
the  grounds  at  the  time  of  my  decease. 

Sometimes  a  testator  provides  that  friends  may 
select  from  the  furniture  or  from  plate  or  jewelry 
articles  they  may  desire  as  keepsakes.  Such  a  pro- 
vision may  give  rise  not  only  to  discontent  but  to 
quarrels.  Any  article  intended  for  a  friend  should 
be  given  outright. 

It  is  well  for  a  testator  not  to  keep  in  his  house 
certificates  of  stock  or  other  securities,  for,  unless 
particularly  mentioned,  they  may  pass  under  a  be- 
quest of  "all  the  personal  property  in  my  house  at 
the  time  of  my  decease." 

The  word  "money"  generally  means  real  money 
and  bank  deposits.  Such  a  bequest  as  "all  my 
money"  is  not  advisable,  as  the  testator  may  spend 
or  invest  the  money  in  his  lifetime. 

SPECIFIC  LEGACIES— ABATEMENT 

Specific  Legacies. — The  gift  of  a  sum  of  money,  as 
"I  give  A  five  hundred  dollars,"  is  general  and  is 


34  MODERN  AMERICAN  LAW  LECTURE 

payable  out  of  the  testator's  general  funds.  A  spe- 
cific legacy  specifies  the  particular  thing  as  in  the 
following  form: 

"I  give  A  my  fifty  shares  of  the  People's  National 
Bank,  of,  etc.,  the  certificate  being  numbered  1406, 
meaning  and  intending  the  same  as  a  specific  legacy. " 

The  testator  in  his  lifetime  may  dispose  of  the 
fifty  shares  of  the  People's  National  Bank.  In  that 
event  A  gets  nothing.  A  testator  may  add  to  the 
form  just  given  the  following  provision : 

"If  at  the  time  of  my  decease  I  am  not  the  owner 
of  the  said  fifty  shares  of  the  People's  National 
Bank,  then  I  give  the  said  A  in  lieu  thereof  the  sum 
of  five  thousand  dollars." 

Suppose  the  testator  has  pledged  the  fifty  shares 
for  his  own  debt  and  the  will  is  silent  on  the  subject. 
Then  A  will  call  on  the  executor  to  pay  the  debt  out 
of  the  general  funds  of  the  estate.  The  executor 
will  have  to  do  it,  and  A  will  receive  the  fifty  shares 
unencumbered. 

If  the  specific  legacy  is  of  coupon  bonds  the  testa- 
tor may  desire  to  provide  that  all  overdue  negotiable 
coupons  attached  to  the  bonds  shall  go  to  the  legatee. 

A  very  important  matter  is  what  is  called  "  abate- 
ment," and  this  arises  where  the  assets,  after  paying 
the  testator's  debts,  are  not  sufficient  to  pay  all  the 
legacies.  The  general  rule  is  that,  in  the  case  of  de- 
ficiency of  assets,  the  general  legacies  (such  as  lega- 
cies of  sums  of  money)  abate  before  specific  legacies 
and  devises  are  resorted  to. 

If  the  testator  has  few  debts  and  the  residuary 
clause  in  his  will  passes  considerable  property,  there 
is  little  probability  that  an  abatement  will  be  neces- 


HOW  TO  PREPARE  A  WILL  35 

sary.  If  the  testator  suffers  severe  losses  after  mak- 
ing his  will,  it  is  well  to  rewrite  it  provided  it  con- 
tains no  provision  as  to  abatement. 

The  following  are  forms  which  provide  for  abate- 
ment: 

If  my  estate  is  insufficient  to  pay  all  bequests 
given  herein,  then  the  bequest  to  my  said  wife  shall 
be  paid  in  full  and  the  other  legacies  shall  abate  pro- 
portionately. 

If  my  estate  shall  be  insufficient  to  pay  all  the 
legacies  in  full,  then  those  given  to  my  brothers, 
sisters,  friends  and  servants,  shall  abate  ratably  to 
the  end  that  my  wife  and  children  shall  enjoy  the 
provisions  made  for  them  herein  without  any  deduc- 
tions or  abatement. 

A  perfect  form  of  will  is  that  which  gives  the  en- 
tire estate  in  shares.  Hence  there  can  be  no  abate- 
ment as  the  legatees  all  share  an  increase  in  value 
and  all  bear  a  shrinkage,  if  any.  The  advisability  of 
bequeathing  property  in  shares  cannot  be  too 
strongly  urged. 

Form. — I  direct  that  all  the  property  of  which  I 
shall  die  seized  and  possessed  and  to  which  I  may 
be  entitled  at  the  time  of  my  decease  and  wherever 
the  same  may  be  situated  shall  be  divided  into  six 
equal  shares.  I  give  two  of  said  shares  to  my  wife, 
A ;  one  of  said  shares  to  my  daughter  B ;  one  of  said 
shares  to  my  son,  C ;  one  of  said  shares  to  my  son  D ; 
and  one  of  said  shares  to  my  two  grandchildren  E 
and  F  to  be  equally  divided  between  them. 

LEGACY  TO  DEBTOR  OR  CREDITOR  OF  TESTATOR 
Legacy  to  Debtor. — If  a  testator  gives  a  legacy  to 


36  MODERN  AMERICAN  LAW  LECTURE 

one  who  owes  him  money  it  should  clearly  appear 
whether  the  testator  intends  to  cancel  the  debt  in 
addition  to  the  legacy. 

Forms. — I  give  A  the  sum  of  ten  thousand  dollars 
and  I  declare  that  all  debts  now  due  me  or  that  here- 
after may  be  due  me  from  said  A,  at  the  time  of  my 
decease  are  hereby  cancelled. 

I  give  A  five  thousand  dollars  and  expressly  de- 
clare that  it  is  not  my  intention  to  cancel  any  claim  or 
claims  I  may  have  against  him  at  the  time  of  my  de- 
cease. 

A  testator  often  provides  for  cancelling  debts 
where  no  legacy  is  given  the  debtor  as  follows : 

I  direct  my  executor  to  cancel  all  claims  of  one 
hundred  dollars  or  less,  including  unpaid  interest, 
which  I  may  hold  against  any  person  or  persons  at 
the  time  of  my  decease. 

I  give  and  devise  to  my  son  A  the  house  and  land 
(description)  which  he  now  occupies  as  my  tenant, 
and  I  release  him  from  the  payment  of  all  rent,  taxes, 
repairs,  insurance  and  any  other  charges  accruing 
at  the  time  of  my  decease. 

I  direct  that  all  loans  to  my  daughter  A  existing 
at  the  time  of  my  decease,  including  interest  due 
thereon,  shall  be  discharged  and  cancelled.  I  direct 
my  executor  to  deliver  to  her  all  notes  held  for  such 
loans  and  the  stocks  and  bonds  held  to  secure  the 
same. 

It  is  common  for  a  testator  to  provide  that  debts 
due  him  from  children,  as  evidenced  by  note,  book 
account,  etc.,  be  regarded  as  advancements  made  them 
and  to  be  deducted  from  the  shares  given  them  in  the 
will. 


HOW  TO  PREPARE  A  WILL  37, 

A  child  may  say  that  he  doesn't  owe  the  alleged 
debt  or  that  it  is  outlawed  and  cannot  be  collected. 
These  objections  cannot  avail.  The  intention  of  the 
testator  is  paramount,  and  the  testator  may  provide 
as  he  chooses. 

Forms. — I  declare  that  all  advances  of  money  to 
my  children  as  appear  by  charges  on  my  books  at 
the  time  of  my  decease  shall  be  deducted  from  the 
shares  bequeathed  to  such  children  in  this  will  and 
that  no  interest  shall  be  charged  or  collected  upon 
such  advances. 

All  advances  or  loans  made  by  me  to  any  legatee 
under  this  will  unpaid  at  the  time  of  my  decease  are 
hereby  cancelled  and  discharged;  and  this  cancella- 
tion and  discharge  applies  to  all  interest  due  on 
said  advances  or  loans. 

All  money  due  me  at  the  time  of  my  death  from 
any  of  my  children  whether  by  promissory  notes, 
book  accounts  or  in  any  other  way,  shall  not  be  en- 
forced against  said  children  but  shall  be  regarded 
as  gifts,  and  all  evidences  of  such  indebtedness 
signed  by  my  children  shall  be  cancelled  and  given 
up  to  them. 

Legacy  to  a  Creditor. — It  is  a  general  rule  that,  if 
a  testator  gives  a  legacy  to  a  creditor  and  says  noth- 
ing more,  the  legacy  is  regarded  as  a  bounty  and  not 
as  a  payment  of  the  debt.  However,  it  is  said  that 
"a  legacy,  exactly  corresponding  in  amount  and 
time  of  payment  to  an  existing  debt  of  the  testator 
to  the  legatee,  and  given  by  a  will  which  contains  no 
provision  indicating  a  different  intention,  is  to  be 
presumed  to  be  in  satisfaction  of  the  debt  and  not 
in  addition  thereto." 


38  MODERN  AMERICAN  LAW  LECTURE 

The  testator  should  make  his  intention  clear. 

Form. — I  give  A  the  sum  of  one  thousand  dol- 
lars in  full  satisfaction  of  my  note  to  him  of  five  hun- 
dred dollars  dated  etc.,  payable  etc.,  and  all  interest 
which  may  be  due  thereon  when  this  legacy  is  paid, 
I  direct  my  executor  to  pay  said  legacy  to  said  A 
only  upon  the  condition  that  said  notes  shall  be 
cancelled  by  said  A  or  his  legal  representatives  and 
delivered  to  my  said  executor. 

PAYMENT  OF  AND  INTEREST  UPON  LEGACIES 

Statutes  generally  declare  the  time  when  legacies 
shall  be  paid  provided  there  is  no  provision  as  to 
payment  in  the  will.  A  direction  to  pay  a  legacy 
"as  soon  as  convenient "  is  too  indefinite  and  should 
be  avoided. 

A  testator  often  puts  a  provision  in  his  will  direct- 
ing his  executor  not  to  pay  legacies  until  the  period 
(one  year  or  more  as  the  case  may  be)  has  elapsed 
from  the  probate  of  the  will,  within  which  creditors 
must  begin  actions  against  the  estate. 

The  following  forms  are  given  as  illustrations: 

I  direct  my  executors  not  to  pay  legacies  until 
three  years  have  elapsed  from  the  proving  of  this 
will,  and  the  legatees  are  then  to  receive  the  exact 
amount  of  their  legacies  without  interest  thereon. 

I  direct  that  all  legacies  given  herein  shall  be  paid 
as  soon  as  my  executors  can  legally  do  so  with  in- 
terest from  the  day  of  my  death  at  the  rate  of  five 
per  cent  per  annum. 

I  direct  that  all  legacies  given  in  this  will  shall 
be  paid  in  two  years  from  the  date  of  proving  the 
same.  The  pecuniary  legacies  are  to  be  paid  with 


HOW  TO  PREPARE  A  WILL  39 

interest  at  the  rate  of  five  per  cent  per  annum;  and 
the  specific  legacies  of  stock  and  bonds  are  to  be 
paid  with  an  amount  equal  to  the  dividends  collected 
and  coupons  cashed  by  my  executors. 

A  convenient  way  of  paying  pecuniary  legacies  is 
by  distribution  in  kind,  that  is  by  paying  in  property 
and  not  in  money. 

Forms. — In  paying  pecuniary  legacies  given  by 
this  will  I  direct  my  executors  to  transfer  and  de- 
liver to  the  legatees  securities,  in  which  my  personal 
estate  is  invested,  at  their  market  value. 

As  my  estate  consists  largely  of  bonds,  I  authorize 
my  executors  in  their  discretion  to  pay  the  pecuniary 
legacies  given  in  this  will  in  bonds  or  partly  in  bonds 
and  partly  in  money,  the  legatees  to  take  such  bonds 
at  their  market  value. 

.  In  most  states  there  are  now  statutes  as  to  the 
taxation  of  legacies  and  distributive  shares  or  of 
collateral  legacies  and  successions. 

The  testator  should  be  asked  whether  or  not  he 
desires  the  legatee  to  bear  the  burden  of  the  tax. 
Forms  like  the  following  are  frequently  found  in 
wills : 

I  direct  that  all  legacy  and  succession  taxes  shall 
be  paid  out  of  the  legacies  themselves. 

The  amount  of  all  taxes  on  legacies  and  devises 
given  by  this  will  shall  be  paid  from  the  general 
funds  of  my  estate. 

I  direct  that  the  inheritance  tax  imposed  upon  the 
legacy  of  ten  thousand  dollars  to  A  shall  be  paid  out 
of  and  deducted  therefrom,  but  that  the  legacy  of 
five  thousand  dollars  to  B  shall  be  paid  to  him  in 
full,  and  that  the  inheritance  tax  imposed  thereon 
shall  be  paid  out  of  the  general  funds  of  my  estate. 


40  MODERN  AMERICAN  LAW  LECTURE 

LAPSED  DEVISES  AND  LEGACIES— RESIDUARY 
CLAUSE— REVOCATION 

Lapsed  Devises  and  Legacies. — The  general  rule 
is  that,  if  a  legacy  or  devise  is  given  to  A.  and  he  dies 
before  the  testator  and  no  provision  is  made  on  the 
subject,  the  legacy  or  devise  lapses,  that  is,  falls  into 
the  residuary  clause  of  the  will.  In  most  states 
there  are  statutory  provisions  designed  to  prevent 
the  lapsing  of  legacies  and  devises,  as  for  example, 
declaring  that,  if  the  legatee  or  devisee  leaves  issue 
surviving  the  testator,  the  issue  shall  take  the  par- 
ent's share  as  the  parent  would  have  done  had  he 
survived  the  testator.  The  best  way,  perhaps,  is  for 
the  testator  to  signify  his  intention  in  the  will. 

Forms. — If  any  legatee  named  herein  shall  die  be- 
fore me  leaving  issue  at  the  time  of  his  death,  the 
legacy  of  such  deceased  parent  shall  go  to  such  issue 
in  equal  portions. 

If  any  legatee  under  this  will  shall  die  before  me, 
the  legacy  to  him  shall  not  lapse  but  shall  be  paid  to 
his  administrator  or  executor  as  the  case  may  be. 

Residuary  Clause. — The  residuary  clause  has  been 
called  a  drag-net.  It  passes  all  that  has  not  pre- 
viously been  disposed  of  in  the  will  as  well  as  all 
after-acquired  property  and  all  void  and  lapsed  leg- 
acies and  devises. 

In  determining  who  shall  be  residuary  legatee  one 
should  bear  in  mind  that  the  general  funds  are  first 
taken  to  pay  debts,  legacies  and  charges  of  adminis- 
tration. Property  often  increases  or  decreases  in 
value  between  the  time  of  making  the  will  and  the 
testator's  death,  and  a  person  should  not  be  named 
as  residuary  legatee  unless  the  testator  desires  that 


HOW  TO  PREPARE  A  WILL  41 

he  receive  the  benefit  of  such  increase,  or  bear  the 
loss  of  such  decrease. 

Form. — All  the  rest,  residue  and  remainder  of  my 
property,  real  and  personal,  of  which  I  shall  die 
seized  and  possessed  and  to  which  I  may  be  entitled 
at  the  time  of  my  decease  and  wherever  the  same 
may  be  situated,  I  give,  devise  and  bequeath  to  A 
of  etc. 

Revocation. — A  testator  may  revoke  his  will 
whenever  he  desires,  and  it  may  also  be  revoked  by 
operation  of  law. 

The  common  way  to  revoke  a  will  is  to  burn  it 
or  tear  it  up.  If  a  will  is  executed  in  duplicate,  both 
copies  should  be  destroyed.  If  the  will  is  destroyed, 
a  codicil  or  codicils  should  be  destroyed  also.  In 
some  states  there  are  statutes  as  to  witnessing  the 
act  of  cancellation. 

Sometimes  a  testator  has  two  wills,  that  is,  he 
has  made  a  second  will  without  having  destroyed  the 
first.  If  he  destroys  the  second,  he  should  also  de- 
stroy the  first,  because  in  some  jurisdictions  the 
cancellation  of  the  second  will  may  revive  the  first 
one.  Otherwise,  if  he  desires  the  first  will  to  stand. 

In  no  event  should  a  testator  interfere  with  his 
will  after  it  has  been  executed  by  striking  out  or 
inserting  clauses.  These  changes  should  be  made  in 
a  codicil  or  a  new  will  should  be  drawn. 

A  revocation  is  sometimes  implied  by  subsequent 
changes  in  the  circumstances  of  the  testator,  as  mar- 
riage or  the  birth  of  a  child.  The  law  on  this  subject 
differs  in  different  localities  and  there  are  statutes 
on  the  subject.  The  attorney  should  bring  this  mat- 
ter to  the  attention  of  the  testator,  for  in  many  cases 
it  may  be  advisable  to  make  a  new  will. 


42  MODERN  AMERICAN  LAW  LECTURE 

If,  after  making  a  will,  a  testator  changes  his 
domicile,  it  may  be  advisable  to  rewrite  and  re-exe- 
cute the  will. 

EXECUTOR 

Selection  of  Executor. — The  question  is  whether 
to  have  a  trust  company  or  an  individual  as  executor. 
If  a  testator's  estate  is  well  invested  and  he  is  not 
engaged  in  business  a  trust  company  is  perhaps 
preferable;  otherwise  an  individual.  It  is  well  for 
a  testator  to  consult  with  the  person  or  persons  he 
desires  to  name  as  executor  or  executors  to  see  if 
they  are  willing  to  accept. 

Forms. — I  nominate  and  appoint  A  &  B  or  the 
survivor  of  them  the  executors  of  this  will  and  re- 
lease them  from  giving  a  surety  or  sureties  upon 
their  official  bond. 

I  constitute  and  appoint  my  wife  A  and  my  son 
B  the  executors  of  this  will  and  I  exempt  them  from 
giving  bonds  or,  if  bonds  are  required,  then  I  release 
them  from  giving  a  surety  or  sureties  thereon. 

I  appoint  A  the  executor  of  this  will  and  release 
him  from  giving  sureties  on  his  bond;  and,  if  this 
will  is  proved  in  other  states,  I  direct,  if  I  am  per- 
mitted so  to  do,  that  he  be  released  from  giving 
sureties  in  such  states. 

I  appoint  the  American  Trust  Company  of  etc. 
the  executor  of  this  will. 

I  nominate  and  appoint  the  Equity  Trust  Com- 
pany of  New  York,  and  A  of  that  city  the  executors 
of  this  will,  and  I  release  the  said  A  from  giving  a 
surety  or  sureties  upon  his  official  bond. 


HOW  TO  PREPARE  A  WILL  43 

I  constitute  A  the  executor  of  this  will  and  direct 
that  any  surety  company  authorized  by  law  shall  be 
the  surety  upon  his  bond  and  that  the  expense 
thereof  shall  be  paid  by  my  estate. 

The  Executor's  Bond. — In  a  few  states  an  execu- 
tor is  not  required  to  give  bond  unless  circumstances 
require.  Generally,  however,  the  executor  must  give 
bond  with  sureties  unless  released  by  the  will.  A 
surety  company  is  released  from  giving  sureties. 
Forms  are  given  above. 

It  has  been  customary  in  some  states  for  a  testator 
to  authorize  an  executor  not  to  file  an  inventory,  but 
now,  as  inheritance  tax  laws  are  almost  universal, 
an  inventory  is  necessary  in  order  to  determine  the 
amount  of  the  property  subject  to  tax. 

Sometimes  a  testator  exempts  an  executor  from 
liability  for  the  default  of  his  co-executor  as  follows : 

Each  executor  of  this  will  shall  be  liable  for  his 
own  fraudulent  acts  and  not  for  those  of  his  co- 
executors. 

Each  executor  shall  be  answerable  for  his  own 
fraudulent  acts  or  misconduct  and  not  for  those  of 
the  other  executors,  and  none  of  my  executors  shall 
be  answerable  for  errors  of  judgment  honestly  ex- 
ercised. 

The  Executor's  Compensation. — As  a  general  rule, 
executors  are  entitled  to  compensation  for  their  ser- 
vices and  for  the  charges  of  counsel. 

There  may  be  good  reason  for  the  testator's  mak- 
ing provision  in  his  will  as  in  the  following  forms: — 

I  direct  that  my  executors  shall  receive  fair  com- 
pensation according  to  the  services  they  severally 
render  my  estate. 


44  MODERN  AMERICAN  LAW  LECTURE 

I  direct  that  each  of  my  executors  shall  receive  the 
sum  of  three  thousand  dollars  in  full  payment  for 
his  services. 

I  direct  that  my  executors  shall  be  allowed  in  full 
compensation  for  their  services,  to  be  equally  di- 
vided among  them,  two  and  one-half  per  cent  upon 
the  appraised  value  of  personalty  and  all  realty  sold 
by  them,  if  the  sale  of  realty  is  required  in  the  set- 
tlement of  my  estate,  and  five  per  cent  upon  all  in- 
come collected  by  them  while  the  estate  is  in  their 
hands. 

If  the  executor  is  an  attorney  the  testator  may 
provide  as  follows : 

I  direct  that  my  executor  be  allowed  for  profes- 
sional services  a  reasonable  amount  in  addition  to 
his  charges  as  executor. 

I  direct  that  my  executor  shall  be  compensated 
only  as  such  and  shall  receive  no  remuneration  for 
services  rendered  the  estate  as  attorney. 

When  a  will  is  contested  a  testator  may  authorize 
the  executor  to  pay  from  the  estate  the  expenses  in- 
curred by  him  as  follows: 

If  the  probate  of  this  will  is  contested  in  any  trib- 
unal and  proves  unsuccessful,  then  I  direct  that  all 
legal  and  other  expenses  incurred  by  my  executors 
therein  shall  be  paid  out  of  the  general  funds  of  my 
estate;  but  none  of  the  expenses  of  those  contesting 
the  will  shall  be  so  paid. 

Debts  and  Funeral  Expenses. — There  is  no  need 
to  provide  in  the  will  as  to  debts  and  funeral  ex- 
penses as  the  executor  must  pay  them.  Debts  are 
to  be  paid  out  of  personal  estate  and  the  realty  is 
to  be  resorted  to  only  when  the  personal  estate  is 
insufficient  to  pay  them. 


HOW  TO  PREPARE  A  WILL  45 

A  testator  may  direct  how  his  assets  shall  be  han- 
dled in  order  to  pay  debts  and  may  state  the  amount 
of  his  obligations  for  the  guidance  of  his  executor 
as  in  the  following  form: — 

I  state  for  the  information  of  my  executor  that  I 
am  not  liable  on  any  commercial  paper,  either  as 
maker  or  indorser,  and  that  it  is  my  intention  to 
have  no  debts  at  the  time  of  my  decease  except  those 
of  a  domestic  nature. 

Powers  to  Sell,  Mortgage,  Lease,  Etc. — In  many 
states  the  devisees  are  entitled  to  the  rents  and 
profits  of  real  estate  until  sold  for  the  payment  of 
debts;  so,  if  the  executor  uses  any  part  of  the  real 
estate,  assuming  that  he  does  not  have  to  sell  it  for 
the  payment  of  debts,  he  must  account  for  the  in- 
come. 

Power  to  mortgage  should  be  distinctly  given  as 
a  power  to  sell  and  convey  does  not  confer  a  power 
to  mortgage.  A  clause  is  generally  inserted  in  the 
power  of  sale  that  the  purchaser  shall  not  be  re- 
quired to  see  to  the  application  of  the  purchase 
money.  A  similar  purpose  is  subserved  by  pro- 
viding that  executors'  receipts  shall  exonerate  those 
taking  them  from  all  liability. 

Forms. — I  give  my  executors  and  the  survivor  of 
them  full  power  and  authority,  if  for  the  payment 
of  debts  and  legacies  they  find  it  necessary,  to  sell 
by  public  auction  or  by  private  sale  and  to  mortgage 
both  real  and  personal  estate,  and  execute,  acknowl- 
edge and  deliver  all  deeds,  mortgages  or  other  in- 
struments required;  and  in  no  case  shall  the  pur- 
chaser or  purchasers  or  the  mortgagee  or  mortgagees 
be  required  to  see  to  the  application  of  the  purchase 


46  MODERN  AMERICAN  LAW  LECTURE 

money  or  rent. 

The  receipts  of  my  executors  for  all  moneys  paid 
and  for  all  property  transferred  to  them  shall  ab- 
solutely discharge  the  person  or  persons  so  paying 
or  transferring,  and  such  person  or  persons  shall 
not  be  required  to  see  to  the  application  of  said 
moneys. 

Authority  to  lease  may  be  given  as  follows : — 

I  authorize  my  executors  to  lease  any  or  all  my 
real  estate*  for  terms  not  exceeding  four  years  from 
the  proving  of  this  will  with  such  covenants  as  may 
be  proper. 

Directions  to  Insure. — Such  directions  as  the  fol- 
lowing may  be  conferred: 

I  direct  that  all  buildings  upon  my  real  estate  be 
insured  for  amounts  equal  to  their  real  valuation, 
and  I  authorize  my  executors  to  pay  the  premiums 
out  of  the  general  funds  of  my  estate. 

Upon  the  expiration  of  any  policies  of  insurance 
upon  the  buildings  upon  my  real  estate  I  direct  my 
executor  to  renew  the  same  for  such  amounts  as  he 
may  deem  proper. 

Compromise  and  Arbitration. — While  in  many 
jurisdictions  authority  is  conferred  by  statute  to 
settle  by  compromise  or  arbitration  demands  in  fa- 
vor of  or  against  estates,  testators  often  confer  the 
power  in  their  wills. 

Forms. — I  empower  my  executors  to  compromise 
any  and  all  claims  in  favor  of  or  against  my  estate  as 
I  could  do  if  living,  and  their  adjustments,  com- 
promises and  settlements  are  to  be  absolutely  bind- 
ing and  are  not  to  be  called  in  question  by  any  one. 

I  authorize  my  executors  to  compromise  any  debt 


HOW  TO  PREPARE  A  WILL  47 

or  debts  due  my  estate  by  the  receipt  of  cash,  by 
allowing  time  or  by  accepting  security,  real  or  per- 
sonal, therefore,  and  debts  or  demands  against  my 
estate  by  paying  cash  in  settlement  thereof. 

I  authorize  my  executors  to  adjust  all  claims  in 
favor  of  or  against  my  estate  either  by  compromise 
or  arbitration. 

Employment  of  Attorneys,  Clerks,  Agents,  Etc. — 
Requests  like  the  following  often  appear  in  wills: 

I  request  my  executor  to  employ  A  as  his  attorney 
in  the  settlement  of  my  estate. 

I  request  my  executors  to  retain  in  their  service 
my  faithful  bookkeeper  A. 

I  authorize  my  executors  to  hire  an  office  and  em- 
ploy such  bookkeepers,  clerks  and  attorneys  as  they 
may  deem  proper  and  pay  all  the  expenses  thereof 
out  of  the  funds  of  my  estate. 

Suggestions  as  to  Keeping  Records. — A  recom- 
mendation like  the  following  may  be  advisable : — 

To  facilitate  the  settlement  of  my  estate  and  to 
avoid  misunderstandings,  I  recommend  that  my  ex- 
ecutors keep  a  record  of  every  meeting.  I  suggest 
that  one  of  them  be  selected  as  clerk  and  that,  at  the 
close  of  each  meeting,  he  enter  in  a  book  a  brief 
statement  of  the  business  proposed  or  transacted. 

Auditing  Accounts  and  Examining  Securities. — 
As  the  duties  of  executors  generally  cover  a  limited 
period  the  insertion  of  a  direction  to  the  executors 
to  permit  the  legatees  under  proper  regulations  to 
examine  accounts  and  securities  is  not  so  urgent  as 
in  the  case  of  trustees. 

TRUST  AND  TRUSTEE 

A  trust  is  not  always  advisable,  yet  there  may  be 


48  MODERN  AMERICAN  LAW  LECTURE 

good  reasons  for  creating  one  as  in  the  case  of  z 

A  dissipated  or  incompetent  son. 

A  daughter  who  has  an  unreliable  husband. 

A  spendthrift. 

A  minor  child. 

A  helpless  friend  or  relative. 

A  person  in  another  jurisdiction,  as  a  married 
woman,  the  laws  of  whose  domicile  restrict  her  in 
the  enjoyment  of  property. 

The  trust  should  be  clearly  defined.  Sometimes  a 
testator  creates  a  trust  of  all  that  he  shall  leave  over 
a  certain  amount.  This  is  too  uncertain  and  in- 
definite. While  it  is  said  that  every  kind  of  property 
capable  of  assignment  may  be  the  subject  matter  of  a 
trust,  yet  such  articles  as  household  furniture  and 
personal  effects  should  be  given  outright. 

The  Trustee. — Nearly  any  one  can  be  a  trustee. 
The  selection,  however,  is  one  of  sound  judgment  and 
good  sense. 

Trust  companies  are  authorized  by  statute  to  be 
trustees.  An  objection  is  that  those  interested  do  not 
feel  freedom  in  consulting  with  corporations  as  they 
do  with  individuals.  On  the  other  hand,  if  a  trustee 
resigns,  is  removed  or  dies,  a  new  trustee  must  be  ap- 
pointed. This  procedure  is  avoided  in  the  case  of  a 
trust  company. 

The  Trustee's  Bond. — If  a  Trust  Company  is  ap- 
pointed no  sureties  are  required  as  in  the  case  of  an 
individual.  As  to  releasing  trustees  from  giving 
sureties,  the  same  rules  apply  as  in  the  case  of  exec- 
utors. 

Compensation  of  Trustees. — The  preceding  re- 
marks on  executor's  compensation  may  be  referred 


to.  The  trustee  is  allowed,  in  a  number  of  states, 
five  per  cent  upon  the  gross  amount  of  income  col- 
lected by  him,  and  from  one  to  two  and  a  half  per 
cent  upon  the  gross  amount  of  principal  conveyed  to 
the  remaindermen  when  the  trust  ends. 

When  a  lawyer  acts  as  trustee,  he  is  generally  en- 
titled to  compensation  for  professional  services  in 
addition  to  that  to  which  he  is  entitled  as  trustee.  The 
testator  may  desire  to  provide  as  follows : — 

I  direct  that  my  trustee  shall  be  allowed  for  pro- 
fessional services  such  an  amount  as  is  just  and  rea- 
sonable. 

While  my  trustee  shall  receive  adequate  compensa- 
tion as  such,  I  direct  that  he  shall  not  be  compensated 
for  services  he  may  render  the  estate  as  attorney. 

Power  to  Sell,  Mortgage,  Lease,  Invest  and  Re- 
invest.— A  will  should  contain  a  full  power  to  sell, 
invest  and  reinvest. 

The  following  is  a  comprehensive  authority : 

I  authorize  and  empower  my  said  trustees  and 
their  successors  in  trust  to  sell,  mortgage,  lease  and 
convey  upon  such  terms  as  they  may  deem  best  any 
or  all  of  the  real  and  personal  estate  constituting  the 
trust  and  reinvest  the  proceeds  in  property,  real  or 
personal,  suitable  and  proper  for  trustees  to  invest 
in;  and  I  authorize  and  empower  them  and  their 
successors  to  execute,  acknowledge  and  deliver  any 
and  all  legal  instruments  in  writing  required  to  ex- 
ecute the  above  powers;  and  no  purchaser  shall  be 
required  to  see  to  the  application  of  the  purchase 
money.  The  receipts  of  my  said  trustees  and  their 
successors  for  any  moneys  paid  to  them  shall  be  an 
absolute  discharge  to  the  person  or  persons  paying 


50  MODERN  AMERICAN  LAW  LECTURE 

the  same,  and  such  persons  or  persons  shall  not  be 
required  to  see  to  the  application  thereof. 

If  there  are  no  directions  in  the  will  as  to  invest- 
ments, trustees  can  invest  only  in  property  recog- 
nized as  suitable.  In  some  states  trustees  are  held  to 
specified  investments,  and  in  others  they  are  held 
only  to  good  faith  and  the  exercise  of  sound  discre- 
tion. 

The  rule  that  a  trustee  is  protected,  if  he  takes  the 
same  care  of  the  trust  property  he  takes  of  his  own 
or  takes  the  same  care  a  prudent  man  takes  of  his 
own,  is  unsound. 

Testators  often  give  instructions  as  to  investments, 
such  as  certain  bonds,  real  estate,  mortgages,  etc., 
and  as  to  retaining  certain  of  their  own  investments. 

Auditing  Accounts  and  Examining  Securities. — 
It  is  doubtful  if  there  is  in  any  state  a  statute  author- 
izing such  auditing  and  examination.  If  every  will 
should  contain  a  provision  on  this  subject,  and  the 
parties  in  interest  should  investigate  annually,  there 
would  be  few  defalcations. 

Form. — When  my  trustees  have  prepared  their 
annual  account,  I  direct  them  to  give  the  same  or  a 
copy  thereof  to  A,  the  beneficiary,  and  to  B,  the  re- 
mainderman and  thereupon  to  submit  to  the  said  A 
and  B  or  to  their  attorney  or  attorneys  the  securities 
and  other  property  of  the  estate  and  allow  them 
ample  time  to  examine  the  same.  I  authorize  the 
said  A  and  B  to  make  such  examination  and  take 
such  notes  as  they  may  desire  either  personally  or  by 
attorney,  and  I  direct  my  said  trustees  to  give  them 
reasonable  assistance. 

As  to  insurance,  compromise  and  arbitration,  sug- 


HOW  TO  PREPARE  A  WILL  51 

gestions  as  to  keeping  records,  employing  attorneys, 
agents,  etc.,  see  preceding  pages. 

The  Beneficiary. — Nearly  any  one  can  have  prop- 
erty held  in  trust  for  him. 

One  of  the  first  matters  to  consider  is  the  payment 
of  income.  The  phrase  "net  income"  means  the  in- 
come remaining  after  payments  for  repairs,  taxes, 
trustees*  compensation,  insurance  and  other  inci- 
dental expenses  have  been  deducted  from  "gross  in- 


come/1 


Forms. — The  income  of  the  trust  herein  created 
shall  be  payable  from  the  date  of  my  death. 

I  declare  that  the  income  of  all  trusts  herein 
created  shall  be  payable  from  the  date  of  the  proving 
of  this  will  in  the  probate  court. 

I  declare  that  the  income  of  the  trust  herein 
created  shall  not  be  payable  until  two  years  from  the 
day  of  my  decease. 

If  it  is  not  convenient  to  establish  the  trust  until 
a  considerable  period  has  elapsed  from  the  time  of 
the  testator's  decease,  a  special  provision  like  the 
following  may  be  inserted: 

I  direct  my  executors  to  pay  A  in  quarterly  pay- 
ments from  the  time  of  my  decease  until  the  trust  for 
his  benefit  has  been  established  a  sum  of  money  equal 
to  five  per  cent  per  annum  upon  the  amount  so  given 
in  trust. 

The  period  of  payment  of  income  should  be  stated 
as  "monthly,"  "quarterly,"  "semi-annually,"  or 
"annually,"  or  a  modifying  clause  may  be  added,  as 
"I  direct  my  trustee  to  pay  the  income  to  B  in  quar- 
terly payments  or  as  often  as  he  may  deem  best." 

In  some  jurisdictions  a  testator  may  provide  that 


52  MODERN  AMERICAN  LAW  LECTURE 

the  income  shall  not  be  anticipated  or  alienated  by 
the  beneficiary  or  taken  by  his  creditors. 

Forms. — I  direct  that  said  income  shall  not  be 
alienable  by  the  said  A  either  by  assignment  or  by 
any  other  method,  and  that  the  same  shall  not  be  sub- 
ject to  be  taken  by  his  creditors  by  any  legal  process 
whatever  or  pass  in  any  event  to  his  assignee  or 
trustee  under  any  insolvent  or  bankrupt  law,  state 
or  national. 

A  testator  may  provide  that  the  trustee  in  his  dis- 
cretion may  add  a  part  or  all  of  the  income  to  the 
principal  of  the  trust. 

Form. — I  authorize  my  trustee  to  add  to  the  prin- 
cipal of  the  trust  such  part  of  the  net  income  as  they 
may  deem  best,  but  I  desire  them  not  so  to  capitalize 
any  part  of  the  income  if  the  habits  of  the  beneficiary 
are  in  their  judgment  satisfactory. 

Many  wills  contain  provisions  as  to  annuities,  as 
* '  I  give  A  an  annuity  of  five  hundred  dollars. ' '  Sup- 
pose the  trustee  establishes  a  fund  of  ten  thousand 
dollars  to  yield  this  annuity  and  that  in  a  few  years 
the  investments  so  depreciate  as  to  yield  only  two 
hundred  dollars.  A  perplexing  question  is  pre- 
sented. A  better  way  is  to  establish  a  trust  of  ten 
thousand  dollars  and  give  the  beneficiary  the  net  in- 
come thereof. 

Trusts  frequently  provide  for  the  application  of 
income  for  education  and  support  of  the  beneficiary. 
It  should  appear  whether  the  trustee  is  to  pay  over 
the  income  or  personally  expend  it.  If  the  benefi- 
ciary is  an  infant  or  is  incompetent,  it  may  be  ad- 
visable to  direct  the  trustee  to  pay  the  income  to  a 
guardian  for  the  support  of  the  beneficiary.  If  the 


HOW  TO  PREPARE  A  WILL  53 

whole  of  the  income  is  not  to  be  applied  the  trustee 
should  be  directed  to  add  all  income  unexpended  to 
the  principal.  If  the  estate  is  a  small  one  the  trustee 
may  be  directed,  if  the  income  is  insufficient  for  the 
beneficiary's  support,  to  resort  to  the  principal. 

Questions  arise  as  to  what  is  income  and  what  is 
principal.  Courts  are  frequently  requested  to  de- 
termine these  questions,  and  legal  expenses  are  in- 
curred which  might  be  avoided  if  wills  contained 
clear  instructions  on  the  subject.  The  most  perplex- 
ing questions  occur  in  the  case  of  stock  or  large  cash 
dividends.  In  recent  years  many  wills  provide  that 
the  trustee  is  to  determine  in  the  case  of  such  divi- 
dends what  is  principal  and  what  is  income  and  that 
his  judgment  is  to  be  final. 

When  the  trustee  is  authorized  to  change  invest- 
ments, it  may  be  well  to  provide  that  commissions  be 
paid  from  principal. 

Form. — I  direct  that  commissions  on  all  sales  of 
either  real  or  personal  property  be  paid  from  prin- 
cipal and  not  from  income. 

Termination  of  the  Trust. — There  is  in  many  lo- 
calities a  law  called  the  rule  against  perpetuities, 
which  provides  that  a  trust  must  terminate  within  a 
certain  period.  The  attorney  will  call  attention  to 
this  rule  and  see  that  it  is  not  violated. 

Clear  and  exact  language  should  be  used  in  pro- 
viding for  the  termination  of  a  trust  and  those  who 
are  to  take  the  property,  discharged  of  trust,  should 
be  definitely  described.  Giving  the  estate  to  the 
"  heirs "  or  "next-of-kin"  of  a  certain  person  is  a 
method  not  to  be  encouraged,  but,  if  employed,  the 
will  should  state  whether  " heirs"  or  "next-of-kin" 


54  MODERN  AMERICAN  LAW  LECTURE 

at  the  time  of  the  making  of  the  will,  at  the  date  of 
the  testator's  death  or  at  the  time  of  the  termination 
of  the  trust,  are  intended. 

A  testator  may  provide  that  the  estate  shall  go  to 
A,  but,  if  at  the  time  of  termination  of  the  trust  he 
be  not  living,  then  to  any  person  or  persons  he  may 
name  and  appoint  in  his  will. 

Provision  as  to  termination  by  installments  is  com- 
mon, especially  when  the  same  person  is  both  bene- 
ficiary and  remainderman.  For  example,  a  man 
creates  a  trust  for  a  son,  giving  him  the  income  and 
then  providing  that  the  trust  shall  terminate  by  the 
trustee  paying  to  him  one-half  of  the  principal  in 
ten  years  and  the  other  half  in  twenty  years. 

Trustees  are  sometimes  authorized  to  terminate  the 
trust  in  the  exercise  of  a  reasonable  discretion. 

GUARDIAN 

Testamentary  guardianship  of  minor  children, 
especially  those  of  the  testator,  is  almost  universal. 

Statutes  frequently  declare  that  the  father,  if  liv- 
ing, and,  in  case  of  his  death,  the  mother,  shall  be 
entitled  to  the  custody  of  the  person  of  the  minor  and 
to  the  care  of  his  education,  while  the  guardian  shall 
have  the  care  and  management  of  the  ward's  estate; 
so  also  that  the  right  to  appoint  a  guardian  by  will 
shall  be  in  the  father,  or,  if  he  has  died  without  ex- 
ercising the  power,  then  in  the  mother. 

As  the  ward  is  both  beneficiary  and  remainderman, 
the  keeping  of  the  guardian's  accounts  is  a  simple 
matter.  Interest  is  added  to  the  principal,  the  ex- 
penses are  deducted  and  the  balance  forms  the  new 
capital. 


HOW  TO  PREPARE  A  WILL  55 

It  is  well  to  give  the  guardian  all  the  power  of  a 
trustee  to  sell,  invest  and  reinvest,  and,  indeed,  a 
great  deal  of  the  law  in  the  preceding  pages  rela- 
tive to  trustees  applies  to  guardians. 

A  guardian  may  be  named  as  follows : 

I  appoint  A  the  guardian  of  my  daughter  B  and 
release  him  from  giving  a  surety  or  sureties  upon  his 
bond.  I  desire  him  to  have  a  parental  care  of  my  said 
daughter  during  her  minority. 

I  constitute  and  appoint  my  wife  A  the  guardian 
of  my  children  B  and  C  without  sureties  upon  her 
official  bonds. 

I  appoint  no  guardian  of  my  children  A  and  B  as 
my  trustee  as  already  provided  herein  is  to  apply  the 
income  of  the  trust  for  their  support  and  education. 
I  commend  my  children  to  the  care  and  affection  of 
their  Aunt  C,  relying  on  her  kindly  oversight. 

All  money  given  herein  for  the  benefit  of  any  minor 
may  in  the  trustee's  discretion,  be  paid  by  him  to  the 
guardian  or  parent  of  such  minor,  and  the  trustee  is 
not  required  to  see  to  the  application  thereof. 

PUBLIC  CHARITIES 

The  subject  of  charitable  gifts  is  not  always  a  sat- 
isfactory one  as  the  statutes  in  the  different  states 
differ  materially,  and  as  changes  in  circumstances 
and  conditions  make  recourse  to  the  courts  frequent. 
A  trust  must  terminate  within  a  certain  period,  but  a 
public  charity  in  most  jurisdictions  is  perpetual. 
For  this  reason  unforeseen  events  often  prevent  the 
carrying  out  of  the  testator's  wishes  and  make  the 
assistance  of  the  proper  tribunal  imperative. 

A  law  writer  has  declared:  "It  may  be  said  gen- 
erally that  valid  charities  are  created  where  the  gifts 


56  MODERN  AMERICAN  LAW  LECTURE 

are  for  the  furtherance  and  promotion  of  the  cause 
of  piety  and  good  morals,  or  in  aid  of  objects  and 
purposes  of  benevolence  or  charity,  public  or  private, 
or  temperance,  or  for  education,  for  relief  of  the 
poor  and  sick,  for  the  promotion  of  agricultural  or 
horticultural  improvements,  for  public  parks,  for 
the  benefit  of  disabled  soldiers  and  seamen,  for  the 
missionary  cause  of  a  church,  for  the  public  good  by 
encouraging  learning,  science,  and  the  useful  arts, 
for  poor  meritorious  widows  living  within  certain 
limits,  for  the  cause  of  Christ,  for  the  support  of  a 
city  missionary  of  a  certain  church,  for  public  li- 
braries, etc. 

"It  may  be  said  generally  that  invalid  charities  are 
created  where  the  gifts  are  for  public  worship,  which 
is  public  only  in  the  sense  that  it  is  open  to  the  public 
by  courtesy,  to  executors  to  be  distributed  to  such 
persons,  societies,  or  institutions  as  they  may  con- 
sider most  deserving  (the  word  "charitable"  being 
omitted),  for  the  permanent  care  of  a  private  tomb 
or  burial-place,  to  a  school,  which  is  a  private  pe- 
cuniary enterprise,  etc." 

An  excellent  method  is  to  give  the  legacy  outright, 
that  is  to  say,  to  bequeath  the  money  directly  to  some 
institution  with  a  request  that  it  be  used  as  an 
entity  or  the  income  be  used  for  certain  designated 
purposes.  In  such  case  the  testator  should  state  that 
the  bequest  is  an  absolute  one  and  that  he  merely 
trusts  that  his  wishes  will  be  respected. 

EXECUTION  AND  ATTESTATION— CUSTODY 
OP  THE  WILL 

Execution  and  Attestation— -It  is  not  intended  to 
give  at  length  the  rules  upon  this  subject  as  the  at- 


HOW  TO  PREPARE  A  WILL  57 

torney  will  see  that  the  will  is  executed  conformably 
to  the  law  of  the  jurisdiction.  Certain  matters,  how- 
ever, may  be  noted.  Obliterations  and  interlinea- 
tions are  to  be  avoided.  But,  if  made  before  the  exe- 
cution of  the  will,  the  attorney  will  see  that  they  are 
referred  to  between  the  attestation  clause  and  the  sig- 
natures of  the  witnesses,  each  witness  before  signing 
having  verified  the  changes  by  actual  observation. 

In  many  states  wills  executed  on  Sunday  are  valid. 
Unless  illness  or  some  other  circumstance  makes  the 
execution  on  that  day  urgent,  a  week-day  is  prefer- 
able. 

The  wording  of  the  in  testimonium  clause  may  be 
as  follows : 

In  testimony  whereof  I  have  hereunto  set  my  hand 
and  seal  this  tenth  day  of  May,  A.  D.  1920. 

In  testimony  whereof  I  have  hereunto  set  my  hand 
this  ninth  day  of  January,  1920,  and  have  written 
my  name  on  the  margin  of  each  preceding  page. 

In  testimony  whereof,  I  have  to  this  my  last  will 
contained  on  ten  sheets  of  paper  and  to  every  sheet 
thereof  subscribed  my  name  this  fourth  day  of  April, 
A.  D.  1919. 

The  witnesses  should  be  persons  of  character  and 
standing,  such  as  business  men,  physicians,  and 
friends  and  acquaintances  of  the  testator.  Minors, 
persons  incompetent  or  convicted  of  crime,  an  heir- 
at-law  of  the  testator,  an  executor  named  in  the  will, 
a  legatee  or  devisee  under  the  will,  the  husband  or 
wife  of  a  legatee  or  devisee,  a  creditor  of  the  testator 
and  a  member  or  stockholder  of  a  corporation  to 
which  property  is  given  in  the  will,  should  not  be  wit- 
nesses. 


58  MODERN  AMERICAN  LAW  LECTURE 

If  it  is  apprehended  that  the  will  may  be  contested, 
the  testator's  physician  should  be  a  witness. 

Wills  are  often  executed  in  duplicate.  One  copy 
only  will  be  probated.  The  following  is  a  form  of  in 
testimonium  clause : — 

In  testimony  whereof,  I  have  hereunto  and  to  an- 
other will  of  identical  contents  set  my  hand,  etc. 

The  following  is  a  common  attestation  clause : 

Signed,  sealed,  published  and  declared  by  the  testa- 
tor as  and  for  his  last  will  and  testament,  in  the 
presence  of  us,  who,  at  his  request,  in  his  presence 
and  in  the  presence  of  one  another,  have  hereunto 
subscribed  our  names  as  witnesses. 

The  following  forms  are  taken  from  actual  wills : 

"We,  the  undersigned,  certify  that  on  this  tenth 
day  of  April  in  the  year  of  our  Lord  nineteen  hun- 
dred, A.  B.  exhibited  to  us  the  foregoing  instrument 
in  typewriting  on  three  pages,  inclusive  of  this,  and 
declared  the  same  to  be  his  last  will  and  testament, 
and  requested  us  to  witness  his  execution  of  it. 
Whereupon  he  did,  in  our  presence,  subscribe  his 
name  at  the  end  thereof,  and  the  signature  A.  B.  at 
the  end  thereof  is  the  genuine  signature  of  said 
testator.  He  did  also  in  our  presence  write  the  ini- 
tials A.  B.  in  the  margin  of  the  first  and  second  pages 
of  said  instrument.  We  do,  therefore,  in  the  pres- 
ence of  said  testator  and  of  each  other,  subscribe  our 
names  as  witnesses." 

"The  foregoing  instrument  contained  on  this  and 
the  fifty-one  preceding  pages,  was  on  this  twenty- 
fifth  day  of  February,  in  the  year  of  our  Lord  nine- 
teen hundred  and  four,  signed,  sealed,  published  and 
declared  by  the  said  A.  B.,  the  testator  therein  named, 


HOW  TO  PREPARE  A  WILL  59 

as  and  for  his  last  will  and  testament,  in  the  presence 
of  us,  who  at  his  request  and  in  his  presence,  and  in 
the  presence  of  each  other,  have  hereunto  subscribed 
our  names  as  witnesses,  having  also  seen  the  said 
testator's  name  written  by  him  in  full  on  the  margin 
of  each  page  except  the  last  one." 

"On  this  14th  day  of  July,  A.  D.  1898,  the  under- 
signed being  present  and  believing  the  testator  to 
be  of  sound  mind  and  memory,  saw  the  testator  sub- 
scribe the  foregoing  will.  At  the  time  of  such  sub- 
scription the  testator  stated  to  all  the  undersigned 
that  the  paper  was  his  last  will  and  testament.  There- 
upon each  of  us,  in  the  presence  of  the  testator,  and 
at  his  request,  and  in  the  presence  of  each  other, 
hereby  attest  and  subscribe  said  will  as  witnesses,  the 
day  and  year  above  written." 

Custody  of  the  Witt. — The  document  should  be 
placed  where  no  opportunity  will  be  afforded  to  pur- 
loin or  tamper  with  it.  It  may  be  placed  in  the  cus- 
tody of  the  testator's  attorney  or  of  the  executor 
named  in  it.  If  the  testator  retains  the  will  himself, 
he  should  notify  the  executor  of  the  place  where  it 
may  be  found  after  the  testator's  decease.  Trouble 
has  been  occasioned  where  a  testator  has  placed  the 
will  in  his  safe  deposit  box  and  left  no  instructions 
with  the  company  as  to  permitting  his  executor  to 
open  the  box  after  his  decease  and  remove  the  will. 
Now  most  safe  deposit  companies  have  a  rule  like 
the  following : 

"No  one  but  the  Renter,  or  his  Nominee,  or  legal 
Representative  duly  qualified  to  the  satisfaction  of 
the  Trust  Company  shall  have  access  to  the  Safe. 
Provided,  however,  that  if,  after  the  decease  of  a 


60  MODERN  AMERICAN  LAW  LECTURE 

box-renter  it  is  claimed  that  the  box  should  be  opened 
to  ascertain  whether  it  contains  a  will,  believed  to 
be  in  the  box,  either  by  use  of  the  box-renter's  key 
or  by  use  of  the  necessary  force  in  case  such  key  ap- 
pears to  be  lost — and  the  Trust  Company  has  not 
received  actual  notice  that  the  claim  is  opposed  by 
the  family  of  the  deceased — the  Vaults  may  give  ac- 
cess to  the  box  for  the  purpose  stated  but  no  other. 
If  a  will  be  found,  the  person  therein  named  as 
executor,  being  then  and  there  present,  shall  be  per- 
mitted to  remove  the  will  if  some  person  not  then 
and  there  present  is  named  as  executor  in  the  will, 
the  box  may  be  reopened  in  the  same  way  to  enable 
such  person  to  remove  the  will ;  and  in  any  event  for 
any  such  opening  of  the  box  or  removal  of  a  will 
therefrom  there  shall  be  no  duty  or  responsibility  on 
the  part  of  the  Vaults  respecting  the  said  will  or 
otherwise." 

In  most  states  if  a  will  is  lost  or  destroyed,  a  cor- 
rect copy  thereof  duly  sworn  to  may  be  admitted  to 
probate.  It  is,  therefore,  advisable  that  the  attorney 
who  draws  the  will  should  keep  a  copy  of  it.  In  some 
places  statutes  provide  that  the  testator  may  enclose 
the  will  in  a  sealed  envelope  and  deposit  it  in  the  pro- 
bate registry,  to  be  delivered  after  his  decease  to 
the  executor  or  executors. 

There  are  statutory  provisions  that  a  will  must  be 
presented  for  probate  within  a  certain  period  after 
the  decease  of  the  testator,  and  also  imposing  penal- 
ties for  the  larceny  or  destruction  of  a  will. 


GAYIAMOUNTR) 
PAMPHLET  BINDER 
Syracuse,  N.Y. 
Stockton,  Calif. 


A     000  696  624     6 


